Presses, piracy and the slumping economy February 27, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , 6commentsI am sorry to say that I was not surprised when I read this article in Inside Higher Ed last week about “Pirates v. University Presses.” I had been vlissfully unaware until recently of the existence of the kinds of websites it discusses, where unauthorized scans of the full text of many books, including academic books, are made available for free. But only a short while ago, a colleague from another institution called one such site to my attention (following the lead of the IHE article, I won’t mention the site’s name) and asked me what I thought about faculty linking to such sites as an alternative to using a university’s e-reserves system. It did not take me long to find the full text for some of the most frequently read titles in contemporary classrooms.
I told my colleague that I would discourage faculty from linking to such sites whenever I was asked, both because they so clearly infringe copyright and because they are inherently unstable; what is there today may not be available tomorrow. I would love to see much more scholarly content available for free on the Internet, but the way to accomplish this is for faculty authors to retain their rights to post and license their own work, not to encourage these kinds of pirate sites. Unfortunately, this approach puts me once more in the position of saying no to instructors who want to take illicit advantage of the benefits of the digital realm because our out-dated approaches to copyright have not caught up with that potential.
Why should we discourage piracy of academic work? One contributor to an e-list discussion of the article asked a legitimate question — “Is it the same crime to spread knowledge by illegally making university press books available as to offer Harry Potter for download?” I am inclined to respond that it is not the same, since the interests of academic authors are more in being read than in making money; they seldom profit from academic publication, and profit is almost never the incentive that gets them to write in the first place. This is why our copyright system, and a publishing structure built on the transfer of exclusive rights, serves the academy so poorly. But authors are interested in controlling the texts of their writings that are available, making sure the readings they assign are stable, and getting appropriate credit for their work. For all these concerns, responsible rights negotiation and licensing, not pirate havens, are the right solution.
Moving beyond mere condemnatory hand-wringing, I am inclined to think there is a lesson to be learned in the fuss around these sites. One of the reasons faculty are tempted by such things is that libraries are increasingly unable to meet their demands for online resources, either because the resources are too expensive (either for subscription or for permission), the libraries simply cannot get permission to place materials online, or the publisher does not offer an online version of the work. The Association of Research Libraries has recently addressed these concerns about declining budgets in a document aimed at starting a conversation with publishers to preserve as much access as possible in a time when massive cancellations are inevitable. This document is a good start, but it only addresses one of the three problems listed above.
In many cases, it is the universities that are creating the digital files that students will use, because publishers have failed to do so. Several of the texts I found on the pirate site I looked at are simply not available as e-books. But libraries’ ability to fill this demand is severely limited by a narrow interpretation of fair use and extremely high permission costs for digitization that exceeds that interpretation. One thing that must be understood is that the money an institution spends on permission fees in all likelihood comes out of its collection budget. So even as those budgets are being slashed, the buying power of what remains is further reduced as permission fees go up. Education suffers, and so, in the long run, do the publishers, from whom we can buy fewer and fewer new works. Certainly the purpose of copyright law — to provide an incentive for new creativity — is left in the dust.
I wonder if there is room for a separate agreement between universities and university presses that would look more realistically at fair use for those works produced by the very faculty authors who want to make use of them and also at the cost of permission when the uses involved really are not within a reasonable understanding of fair use. The interests of both the scholars and the university presses are very different from those of J.K. Rowling or Disney or Random House; our conversations together ought not to be burdened by the perceived needs of the entertainment industries.
Why should the university publishers agree to even discuss this idea? Because library e-reserves and permission services are a bulwark against piracy, and the risk of piracy is increased when those services frequently must refuse requests made by faculty, either because they cannot obtain permission or cannot afford it. It is not that libraries would resort to intentional infringment, but that students will find what they need wherever they can, and their instructors may not be inclined to make fine distinctions about the sources of material. Academic presses also need to recognize that faculty authors feel a legitimate sense of ownership over the products of scholarly publishing, even when they have not retained legal ownership. It is simply difficult to convince some scholars that obvious academic uses of academic work are not permitted, so it may be hard to discourage all use of pirate sites unless we can provide higher education with a legal alternative that is at least as useful. This, of course, is what the music industry waited too long to do. In the long run, then, it is in the best interests of all parties to negotiate the contours of both legal ownership and legal use, and it is the presses that are likely to suffer most if we fail to do so.
The Durham Statement February 24, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , add a commentI have been delighted to see the “Durham Statement on Open Access to Legal Scholarship” getting lots of attention on the blogs and e-mail lists, and I couldn’t resist adding my own comments, as much out of local pride as because I have anything to add to the discussion.
The statement grows out of a meeting here at Duke amongst the law librarians from the top dozen or so US law schools. As a call for open access, it goes well beyond most other declarations in a couple of ways.
First, the Durham Statement calls for law schools to simply stop publishing print versions of their journals. The library directors note that this is especially pressing in a time of “growing financial pressures on law school budgets,” and they are quite right. It is interesting that the issuance of this statement came only days after the Association of Research Libraries issued its own statement about how publishers and libraries should deal with the economic emergency, in which a move to online only availability is also suggested.
One could argue that it is easier for law schools to suggest the transition to electronic only, open access publication because law school publishing is a unique model, where students do the editorial work and there is very little profit motive behind the publications. But it is important to realize that the incentives for publishing legal scholarship are the same as those for all other scholarly publication — reputation and impact on the field. So a model that works for legal scholars points the way toward new models that would also work for other types of scholarship. Law journals are a proof of concept that show how unnecessary the print-based subscription journal really is to the foundational values of academia.
Another point of interest in the Durham Statement is that, in spite of its call for immediate open access, it also includes a clause urging faculty authors to retain their copyrights. One might wonder why this is important if all law journal publication was online and free. The Statement calls this “a measure of redundancy,” and that is a big part of the answer. If academics retain their copyrights, they will be in a position to respond to changes in the means for distribution and use of their work. We simply do not know what will come next as technology evolves, and it is the authors themselves who will have the best incentive to adapt and respond in ways that serve their own interests. For that reason, even in an entirely open access world, authors should reserve their copyrights; the Durham Statement acknowledges this reality and suggests use of the Association of American Law Schools model agreement between authors and journal publishers.
From James Joyce to Harry Potter, the importance of fair use February 19, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use, Scholarly Publishing , 1 comment so farAnthony Falzone is Executive Director of Stanford University’s Fair Use project and has defended fair use as an exception to copyright and a key “safety valve” for free expression in several high-profile cases. Anthony has argued successfully for fair use in the case of the Joyce scholar whose attempt to publish letters by Lucia Joyce was opposed by the Joyce estate and in defense of a short excerpt from the John Lennon song “Imagine” used in the Ben Stein movie “Expelled” and opposed by Yoko Ono. He also defended the Harry Potter Lexicon against an infringement claim by JK Rowling and is currently representing the street artist who made the iconic Barack Obama HOPE poster.
Falzone will talk about these cases and the importance of fair use for scholars and universities in a talk at Duke on MARCH 2, 2009 in the Schiciano Auditorium (Fitzpatrick CIEMAS engineering building) at 5 pm. He will emphasis that fair use is vital in higher education not only to prevent copyright from stifling scholarship but also to support free speech and academic freedom. His lecture is entitled “From James Joyce To Harry Potter And John Lennon: The Impact Of Fair Use On Scholarship And Free Expression.” A reception will follow.
This event is open to the whole Duke community, but it is especially relevant for scholars and teachers who rely on fair use to create their own scholarship or to distribute scholarly works to students and colleagues, as well as to those interested in the role of free speech in the academy.
If anyone doubts the importance of fair use for academics in all kinds of situations, this blog post by Middlebury College professor Jason Mittell offers a couple of interesting lessons. First, his reliance on fair use, and especially the transformative nature of his use of the screen captures he describes, is an important reminder of how often scholarship is dependent on fair use. As has often been noted on this site, transformative uses have gotten a lot of favor by our courts recently, which is a tremendous advantage for scholars like Mittell. But the downside is his encounter with Disney, which would not give Mittell permission for the cover art for his book unless he also paid copyright fees for all the illustrations inside, even though the latter were all very likely to be fair use.
To most of us, at least some aspects of Mittell’s story seem surprising or unfair; this is precisely why Tony Falzone’s lectures promise to be such an important and eye-opening event.
Falzone’s lecture will be repeated at UNC Chapel Hill on March 3 at 5:30 pm in the Wilson Library. These events are jointly sponsored by UNC University Library, Duke University Libraries, UNC’s Center for Media Law and Policy, and Triangle Research Libraries Network
Good for aging rockers, bad for the rest of us February 13, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation , add a commentThat pretty much sums up the situation regarding a proposal in the European Union to extend copyright protection in sound recordings from 50 years to 95 years. There are two important lessons to learn here — one specific and one general.
To start with some background information, we note that in the EU, as in most of the rest of the world, sound recordings are treated somewhat differently than materials under copyright. The rights in sound recordings as well as several other classes of stuff, are called “neighboring rights,” and have traditionally carried less protection than copyrights per se. This is not true in the US, where musical recordings are dealt with in the copyright act and receive the same term of protection — life of the author plus 70 years — as does other subject matter. In the EU, the copyright term is the same as that in the US, but sound recordings have had a shorter (but hardly short) term — 50 years. Now there is a proposal to almost double that term for sound recordings to 95 years.
This proposal has just been approved by the legal affairs committee of the European Parliament, and now goes for a vote to the full body. This in spite of several studies that have shown the economic harm of extending copyright this much. Every expert group that has studied the issue has advised against the move, but the pressure of industry lobbying seems to be more than the Members of the European Parliament can bear. There are stories about the recent moves here and here (from very different perspectives).
Most interesting, perhaps, is this letter from Bernt Hugenhotz, one of Europe’s leading copyright experts, pointing out that this action is proceeding in the face of all the evidence suggesting it is a bad idea.
Finally, this blog post from last month includes a nice little video that offers a simple explanation, aimed at MEPs, about the economics of copyright extension. The point, of course, is that nearly everyone loses when copyright terms are extended beyond the reasonable, and very short, time necessary to provide a meaningful incentive to create.
So what are the lessons we can take away from this controversy? First, that the economics of copyright extension actually favors shorter terms, even as industry pressures for longer ones. And more generally, this affair emphasizes the point made by Prof. James Boyle in his new book The Public Domain about the great need for basing copyright decisions on actual data rather than mere assertion and self-interest. It would be nice to believe that legislators approached every issue with a eye on data and evidence, but the history of copyright regulation does not bear that out.
Defending hope February 8, 2009
Posted by Kevin Smith in : Copyright in the Classroom, Fair Use , 1 comment so farDespite a recent appearance on CNN, Anthony Falzone, the Executive Director of Stanford’s Fair Use project, isn’t talking much about his latest case, which is perfectly proper. Nevertheless, the case has all the necessary elements to attract a great deal of attention.
Street artist Shepard Fairey seems to admit that his used a photograph taken by an AP photographer to create his image of Barak Obama inscribed with the word “HOPE.” The image became downright iconic during and immediately after the election. The work has certainly had an impact on Fairey’s career, both positive and negative. Just yesterday I saw a commercial-like feature about him on the USA Network; he is, they say, “character approved.” In the spot Fairey comments on the thrill of being a street artist and, as he says, doing something he is not supposed to do. According to this story, the thrill caught up with Fairey on Friday when he was arrested in Boston, apparently for defacing public property, although the nature of the warrants is not clear.
As the story about his arrest notes, Fairey is also being sued by AP over his use of the photograph to create those famous Obama posters one sees everywhere. AP is asking for credit and compensation from sales of the image; Fairey is asserting fair use. Which brings me back to Anthony Falzone, who is defending Fairey in the copyright suit. Although he acknowledges that fair use is to be the defense, Falzone has otherwise said little, which is the appropriate course for a lawyer in an ongoing case.
Anthony Falzone will be talking, however, about the other high profile copyright cases he has litigated, when he speaks at Duke and at the University of North Carolina on March 2 and 3. Many of his cases involve both fair use and free speech issues, and they often either directly involve scholarship or have grave implications for scholars. Some of his previous cases have included helping James Joyce scholar Carol Schloss win agreement that her use of letters in a scholarly book was fair, in spite of objections from the Joyce estate, and successfully defending filmmaker and conservative pundit Ben Stein on fair use grounds when Yoko Ono objected to a brief clip of “Imagine” use in the film “Expelled.” Perhaps Falzone’s most widely-publicized case was his defense of the publisher of “The Harry Potter Lexicon” against a coyright infringement claim from JK Rowling and Universal Pictures. About all of these cases, Falzone will have much to say when he visits the Research Triangle.
Falzone’s lecture at Duke is called “From James Joyce to Yoko Ono to Harry Potter: the Impact of Fair Use on Scholarship and Free Speech.” It will be at 5 pm on March 2, in the Center for Interdisciplinary Engineering, Medicine, and Applied Sciences (CIEMAS) Auditorium A on West Campus. A reception will follow the talk. This promises to be an exciting and timely discussion of the role fair use plays in supporting both scholarship and the fundamental values of free expression. Hopefully many people in the Duke community will come out to hear Falzone, either on March 2 or the next day at UNC.
