How does Fair Use work? (weekly widget) December 28, 2007
Posted by Kevin Smith in : Copyright Information Notes , 2commentsFair Use is the only exception to the copyright law that applies to all of the rights in the copyright “bundle” — reproduction, distribution, public display, public performance and derivative works. If it applies, fair use can allow otherwise unauthorized uses that involve any or all of these rights. The problem is that it is very hard to predict when fair use will apply.
Fair use was an exception to copyright created by judges in order to maintain an equitable balance between copyright holders rights and the legitimate needs of users. It was incorporated into the new copyright law in 1976 with no intention to change the flexible, factor-based analysis that judges had been using all along. So instead of a set of requirements that have to be met for all the other exceptions to apply, fair use has a set of four non-exclusive factors that judges are to balance. It is not a checklist nor a mathematical equation, but rather considerations to be balanced in order to help judges decide what is fair.
The four fair use factors listed in section 107 are 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market for or value of the original. In addition to these factors, section 107 lists some illustrative examples of activities that might be fair use — “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.”
Because it is “an equitable rule of reason” applied by judges, and therefore quite uncertain, some people are afraid to apply fair use. Nevertheless, it is an essential tool for higher education and the only copyright exception that is flexible enough to accommodate new uses and new technologies. It is very important, for this reason, that academics continue to consider the four factors and make good faith decisions about fair use whenever appropriate.
NIH public access mandate becomes law December 27, 2007
Posted by Kevin Smith in : Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing , 3commentsOn the day after Christmas, President Bush signed the Omnibus Appropriations bill for fiscal year 2008, ending a long struggle with Congress over earmarks, appropriate funding levels for various government agencies and continued funding for the war in Iraq. Buried deep in this huge and complex document (section 218, to be specific, although not all the sections seem to be numbered) is language that turns the voluntary program of open access deposit for research articles that are the result of National Institute of Health funding into a mandate.
Beginning immediately, apparently, when an NIH funded researcher has a article about her research accepted for peer-reviewed publication, she is required to deposit a copy of the final version of the article into the open access PubMed Central database within 12 months of publication.
Librarians, and many others in higher education, have lobbied for several years to get this requirement, and others like it for research funded by other taxpayer supported agencies, enacted. Now the issues of implementation become both real and urgent. How can we help faculty researchers understand the new mandate? What publishers can we recommend, and can we help faculty review their publication contracts to be sure compliance (or even earlier public access to the article) is allowed? Some publishers, like Elsevier, already promise to deposit copies of articles they publish for researchers. Publishing with such a publisher is an easy way to comply with the mandate, but it will almost certainly result in the full 1 year delay before open access. For many researchers, there will still be significant advantage in accomplishing open access much sooner than this. So the task of assisting faculty with understanding their alternatives, negotiating their publication contracts and navigating the mechanics of open access deposit are even more urgent services that academic libraries can and should provide.
Strangling our cultural past December 26, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation , 1 comment so farIn a recent post about “The Global Garroting of the Public Domain,” William Patry describe beautifully how we have arrived, in the US, at such a long term of copyright protection, and how international trade negotiations are used to continually ratchet up the pressure for ever-stronger and ever-longer copyright rules. The main point of his post, about how US interests now seriously threaten the publishing industry in Korea, not because of piracy in Korea but merely because some large US content owners are anxious to keep older works in this country out of the public domain, is a sad lesson in unintended (at least by some) consequences. His post, as well as some interesting comments on it by Georgia Harper here at Collectanea, reinforces a point made in this space about “policy laundering” using international trade negotiations.
As if to add strength to Patry’s argument that the real purpose behind copyright term extension has never been stronger incentives for future creation, but rather to keep older works out of the public domain, two recent news articles recount cases on exactly that topic. In one, with an international flavor of its own, Japanese news sources report that the Supreme Court in that country has rejected a claim by US movie studios that the 1953 movie “Shane” should continue to be protected even though its copyright expired, under the Japanese law in place at the time, at the end of 2003. A new law put an extension of the term into place as on January 1, 2004, but the court declined to apply the extension to movies that fell into the public domain at the same moment that the new term of protection took effect.
Content owners were more successful in their arguments that some studio outtakes from songs by Elvis could not be used in a new album. Although the producer of the new album by Cargo Record firmly believes that the material was recorded early enough to be in the public domain, the company has decided not to release the album after a threatening letter from Sony BMG. A Sony spokesman was very frank about not wanting to let others “assume” that these works are in the public domain when they “may” not be. A perfect expression of the “chilling effects” that may be the primary purpose of the Sonny Bono Copyright Term Extension Act.
These cases provided added evidence to Patry’s powerful argument that restricting the public domain, not encouraging creativity in the future, is the real motive force behind not only our last copyright term extension but also the calls that are already being heard for further extensions.
Bad impact? December 21, 2007
Posted by Kevin Smith in : Scholarly Publishing , 1 comment so farAs I have discussed before, impact factors are tremendously important in the process of evaluating the quality of scholarship and the career prospects of academics. So it is especially troubling to read this editorial called “Show Me the Data,” published in the Journal of Cell Biology this week by two scientific journal editors and the director of a university press, raising questions about the reliability of those impact factors on which so much depends.
Impact factors are calculated, and marketed, by Thomson Scientific, which was formerly known as the Institute of Scientific Information, or ISI. For many years ISI has published citation indexes, and the impact factors are an outgrowth of those works. When an academic is being assessed for tenure, promotion, grant funding or even a salary bonus, it is a common practice to consult a citation index to determine the influence of that professor’s work and to look at impact factors to see if she is publishing in the most influential places. So Thomson/ISI has tremendous influence in the whole structure of academic hiring and rank. The editorial in JCB takes a look at how firm the foundation for that influence is.
The editorial reports on the authors’ attempts to replicate the calculations that result in specific impact factors. The data they were able to purchase from Thomson Scientific contained what they believed were errors in Thomson’s own reported methodology and did not lead to results consistent with the published impact factors for the three journals involved in the study. When queried, Thomson replied that a different set of data was used to calculate impact factor than that sold from their “research group.” But even when they were reportedly given access to the other data set, the authors were unable to replicate the published findings. There conclusions raise a significant concern: “It became clear that Thomson Scientific could not or (for some yet unexplained reason) would not sell us the data used to calculate their published impact factor… Just as scientists would not accept the findings in a scientific paper without seeing the primary data, so should they not rely on Thomson Scientific’s impact factor, which is based on hidden data.”
By itself this paper does not close the book on the accuracy of impact factors. There are many questions one would like to ask, some of which are unanswered because of restrictions on how Thomson Scientific allows purchasers to use the data that they buy. But there are already many other reasons to question the role of citation rates and impact factors in the promotion and tenure process, such as their inability to account for new modes of disseminating the results of research and scholarship. This article simply strengthens the case for a more multifaceted and qualitative approach to academic evaluation.
What are the specific teaching exceptions? (weekly widget) December 20, 2007
Posted by Kevin Smith in : Copyright Information Notes , add a commentTwo exceptions, found in section 110(1) & (2) of the Copyright Act, apply specifically to teaching activities. These are both exceptions to one of the exclusive rights held by a copyright owner, the right to authorize public performances of the copyrighted work. Public performances happen all the time in teaching, whenever a poem is read, a play staged or a film screened for students. All of these performances would be considered public, even when confined to a small class of students, under the broad definition in the copyright act. So a specific exception to the public performance right is included as section 110(1), which allows public performances without permission as part of face-to-face teaching activities of a non-profit educational institution, in a classroom “or similar place devoted to instruction.” The only further requirement to benefit from this exception is that the copy of a film or other audio-visual work that is performed must be legally made. Copies that are purchased from a reputable vendor or borrowed from a library, a friend or a video-rental service are all lawfully made.
The other teaching exception in 110 is the TEACH Act, which greatly expanded the opportunity in subsection (2) for performances via distance education. Unlike subsection (1), the TEACH Act is full of specific requirements to enjoy its benefit. Some of these requirements are rather difficult for many institutions to fulfill; the best summary of how to interpret and use the TEACH Act is found in this TEACH Act toolkit from North Carolina State University.
Because these exceptions are so specific and, in the case of the TEACH Act, so difficult to use, many educational activities have to rely on fair use — the broadest exception in US law to the rights of a copyright holder — if they are to proceed without seeking permission.
