Openness and academic values June 26, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright in the Classroom, Open Access and Institutional Repositories , 2commentsAn interesting controversy arose recently at San Jose State University, when a professor objected to the fact that one of his students posted source code he had written as part of some class assignments onto the web. Amazingly, the professor claimed that sharing this code was tantamont to plagiarism, since it made the student’s work available for others to copy, and might be copyright infringement. This latter claim seems to have been based on the professor’s belief that, as the author of the assignment, he had a copyright interest in the work of the student. There is a report and comment about this case from Ars Technica here, and one from Inside Higher Ed here. The University’s Judicial Affairs office did not comment on the copyright claim, but it did determine that the student had not violated the academic integrity policy and could not be prohibited from posting his own work. There are lots of opportunities here to elucidate copyright issues and ponder the important values of academia.
As far as the copyright issue is concerned, it seems pretty clear that the professor does not really have a claim here, at least not if all he did was to pose a problem for his students to solve. Ideas, we must recall, are not protected by copyright, only expression is. Computer code is protected by copyright from the moment it is fixed; the Copyright Office considers software a “literary work.” That protection is vested in the author, and no interest is owned by a person who merely set the parameters of the work or suggested ideas which might be used. Patents, which are also available for software, do protect ideas, and perhaps the SJSU professor is confusing the two very different kinds of protection (although there is no indication that anyone has sought a patent). Unlike a patent, there is no need to apply for copyright protection. That protection is owned by the author of the expression.
Which brings me to the most important reminder to be taken from this case. It is that students own the copyrights in the works they create at our institutions. As the digital age offers new opportunities to disseminate scholarship, including student scholarship, we need to remember that students own their copyrights (just as professors own theirs) and formulate appropriate policy to respect those rights and facilitate use and sharing as needed.
On the plagiarism charge, I think it is clear that SJSU was correct to affirm the ability of students to share their work. If open access sharing is thought to be a problem because of the mere potential for plagiarism, all publication would pose a similar threat. And especially in the area of computer science, where open source code is a common norm, it is important for students to learn the value of sharing in terms of the ability of a community to review and improve a scholar’s work, and to develop judgment about when a particular work is ready to be shared.
There are many reasons to share scholarship, and very few reasons to keep it secret. Scholarship that is not shared has very little value, and the default position for scholars at all levels ought to be as much openness as is possible. There are a few situations in which it is appropriate to withhold scholarship from public view, but they should be carefully defined and circumscribed. After all, the point of our institutions is to increase public knowledge and to put learning at the service of society. And there are several ways in which scholars benefit personally by sharing their work widely. The SJSU student hoped that potential employers would see his work and be impressed; how can a university object to that hope? Indeed, it reflects the professional ambitions of most scholars, and they, like our student, benefit in that ambition if they share their work as openly as possible. Openness should be the default for academic work, and closed access only an alternative when there are clear and coherent reasons that justify it. In this case, the student has something important to teach the professor about the important values of academia.
An approprate way to close this reflection is to point to the web site for the Open Student organization, where students are working constantly to remind the academy that openness and public access are key elements to embodying our educational mission.
Words having meanings, but money talks. June 23, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation , 1 comment so farThe overheated rhetoric employed by the big content industries in their futile and probably suicidal battle against file sharing has been very detrimental to any hope for an improved understanding of copyright and intellectual property. For example, in an age when real piracy has once again become an international concern, the use of term “piracy” for file sharing seems both inaccurate and offensively self-centered. In a recent article in Information Today, K. Matthew Dames does a effective job of deconstructing this use of “piracy” and explaining why it really does matter what language we use to frame the problem of copyright infringement.
There is some irony in Dames’ article, however, in his use of “theft” as an alternative to “piracy,” as when he asks “should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property (IP)?” Black’s Law Dictionary, following a long common law tradition, defines theft as “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.” This definition indicates why theft is also a poor word to use to frame the problem of infringement. The characteristic of intellectual property that it can be shared without depriving the original owner of it, and that its value, in fact, depends on this ability to share copies, explains why legislators have always distinguished infringement from theft. To infringe does not mean to “remove” the IP but to copy it. Nor is there an intention to deprive the owner of the property, merely some of its value. Since theft is a “specific intent” crime, IP is not treated as personal property (chattels) under the law, but in a conceptually different category which can be infringed but not stolen.
Why do these fine legal distinctions matter? In my opinion, the greatest harm done by the rhetoric of piracy and theft is that it seems so absurd to many people that they discount the seriousness of infringement. The ubiquity of file sharing today seems to prove this point. By overreaching in their rhetoric, the content industries encourage many people not to take them seriously. But infringement is a serious matter; it deprives someone of their rights, if not their property, and that is a matter the law should take seriously. The rhetoric of theft and piracy makes it too easy to laugh and scoff instead.
Nevertheless, the exaggerated language and claims of the content industries do have some effect. For one thing, they can influence juries to get swept up in the overheated atmosphere created by talk of piracy and theft. How else can one explain the verdict in the second trial of Jammie Thomas-Rasset? When her first trial for downloading 24 songs without authorization ending in a judgment of $222,000 in damages, or $9,250 per song, the judge himself called that amount “unprecedented and oppressive.” Now the second jury has assessed damages of $80,000 per song (although there seems to be no chance of collecting that money and indications that the RIAA will not try). It is easy to conclude that the same rhetoric that seems so silly and inapt as part of an “education” campaign is very effective in the hothouse atmosphere of a courtroom; perhaps, indeed, that has been the point all along. In any case, we will certainly hear a great deal more from the content industries trumpeting this victory and trying to deter even legal sharing with the threat of ridiculous damage awards.
In the meanwhile, Fred von Lohman of the Electronic Frontier Foundation raises the interesting question of whether this award of damages is constitutional. The Supreme Court has struck down punitive damage awards in the past when they were considered so out of line with actual damages that they violated due process, and in the Thomas case the actual damages were less than $25. So an award of almost 2 million is certainly out of line. The problem is that statutory damages are different from punitive damages in an important way — they are written into a statute. Excessive punitive damages have been found to violate due process because they are unforeseeable; a defendant in a relatively small case cannot imagine that they could find themselves liable for millions, and the decision to create such liability is made solely by a jury in the specific case. The Court has found that reasonable foreseeability is a limit on a jury’s discretion in such situations. In an infringement case, however, the range of damages is specified in the law, and a potential defendant should know the consequences prior to undertaking infringing activity. There is not, in short, the same kind of due process problem in copyright cases.
This is one reason why I do not expect the award in the Thomas case to be challenged on Constitutional grounds. The other reason is that the RIAA has already signalled that it is willing to settle for much less money; it wants to advertise the judgment but not appear like an ogre trying to squeeze blood from a turnip. Perhaps the best reason for the RIAA not to try to collect here, however, is that it does not want to see either a court challenge to the Constitutionality of the statutory damages provision of the copyright law OR a legislative awakening to the obvious fact that these damages have gotten out of hand and should be reduced as a matter of good law and common sense.
Fair use, by comparision June 17, 2009
Posted by Kevin Smith in : Fair Use , add a commentFair use is a uniquely American concept, in spite of its recent inclusion in the national copyright laws of Japan and Israel. In the US, after all, it is a common law doctrine that was developed by judges, intent on mitigating the most unfair applications of the copyright monopoly, for over 120 years before it was adopted in almost the exact terms in which it had been articulated by those judges, into section 107 of the 1976 Copyright Act.
When I spoke to the eIFL IP conference back in March, this history of fair use was in my mind as we discussed the flexibility that fair use offers versus the certainty offered by more specific exceptions for research and teaching found in the copyright laws of most other countries. I blogged about those reflections a couple of months ago, and also wrote recently about the history of fair use in the US.
Now I have just finished reading an article by Duke Law Professor Jerome Reichman and Professor Ruth Okediji of the Univerisity of Minnesote Law School that has renewed and deepened these comparative reflections about fair use and international copyright law. The paper, “Empowering Digitally Integrated Scientific Research: The Pivotal Role of Copyright Law’s Limitations and Exceptions,” is a sweeping discussion of the potential inhibition of science and international development caused by copyright law’s “one-way ratchet” in international fora, by which levels of protection keep getting increased while limitations and exceptions have been, until recently, largely ignored. But I want to focus briefly on a small part of the discussion by Reichman and Okediji about the relationship of fair use to limitations and exceptions in the rest of the world.
The point I want to emphasis is fairly simple (probably because I have not fully digested the article yet). It is simply that fair use and the “three-step test” used to evaluate limitations and exceptions under international agreements have something to teach each other. The three step test, found in the Berne Convention in article 9.2 and in several other places in international IP agreements, says that limitations and exceptions adopted into national copyright laws should apply to “certain special cases,” not “conflict with normal exploitation” of a work, and not “unreasonably prejudice the legitimate interests” of a rights holder. There has been a great deal of debate about how to interpret these terms and how to apply this test; the major content industries have latched onto its language to suggest that only the narrowest of exceptions can pass muster.
Reichman and Okediji suggest that the interpretation of the three-step test should proceed more in the way fair use is interpreted, as an equitable balancing test where there is no “score keeping” of the factors, nor must each factor favor the same side of a debate. Instead, they argue, quoting the Max Planck Institute’s declaration on the subject, courts should weigh these three steps in light of the circumstances and the normative values that IP law tries to embody. In short, they see the three-step test as an “equitable rule of reason,” as fair use has been called for years.
On the other hand, Reichman and Okediji also find a lesson for fair use in an examination of the three-step test. One reason judges are sometimes reluctant to apply fair use in a given situation is that it is an “all or nothing” proposition. If a work is fair use, the rights holder is not entitled to any compensation for the use. As the authors see the three-step test, it suggests the lesson that sometimes a use may serve the public good to such a degree that, in the circumstances, no compensation is called for. But they also recognize that there may be situations where the use should be allowed, but equitable compensation paid to the rights holder. They suggest that situations in which the use serves a normative public good but also generates revenue, a rights holder could deserve compensation from those revenues. Thus fair use would become a mechanism for imposing, in some circumstances, a compulsory license for a particular use rather than a free pass.
This is a fascinating suggestion, and one wonders whether judges could, or would, make this change to fair use without statutory amendment. Congress specifically said, when it incorporated fair use into the law, that that doctrine was left free for further interpretation. In any case, this is only one of a compelling series of points that Reichman and Okediji make about the relationship between copyright law and the progress of science around the world.
Peer review and open access June 12, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , add a commentSeveral different events have focused my attention recently on the relationship between open access initiatives and peer review. First, a new task force on “digital futures” at Duke met for the first time yesterday, and it became clear very quickly that this group sees an open access initiative as its first task. The group, which was appointed by the Provost and is predominantly made up of faculty, will evaluate various options and recommend a policy or policies to the Provost and the Academic Council. The discussion at the task force’s first meeting made in very plain that open access was an important value to the group, but also that the apprehensions and misapprehensions about how open access is related to peer review and traditional promotion and tenure processes would be a major focus for conversation and education.
Next, I ran across this blog post by T. Scott Plutchak, the Director of the Health Sciences Library at the University of Alabama at Birmingham, about peer review and the NIH Public Access mandate. I certainly do not agree with everything Plutchak says here. He often seems to treat copyright as a publishers’ right rather than a right that vests with an author at the moment of creation, and that error creates a significant confusion when he mentions, and rejects, the argument that “the publisher has the right to refuse to grant the license.” Of course, it is the author, as the original copyright holder, who grants a license to NIH as a condition of funding. The publisher merely decides whether or not to accept an article and the transfer of a copyright that is subject to that prior license. But Plutchak is quite right to raise the issue of peer-review and to note that the NIH clearly values such review and is gaining a benefit from a process that is managed by publishers.
That concern leads me to the article I really want to point to with this post, “Publish and Cherish with Non-proprietary Peer Review Systems” by Leo Waaijers. Waaijers raises the same point that worries Plutchek and says quite bluntly, in the context of the multiple open access mandates from funding agencies that sponsor research in the European Community, that such mandates are unfair to a large number of authors because they are forced to negotiate copyrights with a variety of publishers, and most cannot publish in fully open access journals. Most of the others must transfer copyright in order to gain the obvious advantage of the peer-review system managed by commercial publishers. Waaijers’ solution to this unfairness is striking; it is simply that funding agencies should contract directly with publishers to create “non-proprietary” peer review systems. By this he means systems that can accomplish independent peer review without insisting on a transfer of copyright; such systems would allow far more authors to make their work available directly in open access form without jeopardizing their promotion and tenure processes.
This suggestion clearly requires a lot of thought. But two interesting things seem to stem from such a idea. First, by separating peer-review from the process of proprietary publication, it would create an on-going role for some publishers even when and if their current business models become unsustainable. Waaijers’ suggestion would ask existing publishers to submit proposals to the funding agencies to run these peer review systems, which would be independent of their other publication activities, thus taking advantage of developed expertise without continuing to tie that expertise to a specific model of scholarly communication. Second, by examining the bids created in respond to a funder’s tender or request for proposals, the scholarly community would gain much better insight into what it actually costs to run a peer review system, which is, after all, the part of the current model of scholarly publication that is most important to scholarly authors and that we must take care to preserve in some form.
New (and not so new) resources June 2, 2009
Posted by Kevin Smith in : Copyright Information Notes, Copyright Issues and Legislation, Fair Use, User Generated Content , 2commentsI am delighted to be able to link to a whole new group of resource for understanding and teaching others about copyright law and user rights. Since most of these resources are video, they offer a nice supplement to the text resources I have listed here and here.
First, because it is the most general, is this new web site called “Teaching Copyright” from the Electronic Frontier Foundation. This is a full-scale online curriculum designed to teach students about copyright, It is intentionally offered to counter some of the educational efforts of the music and movie industries, which tend to focus heavily on what is not allow and try to avoid mentioning fair use or other exceptions that benefit users and support new creativity.
Second is what I like to call the most boring seven minutes on YouTube. I realize that there is great competition for that honor, but this video in which I discuss the copyright and privacy issues involved in recording campus lectures and classes for Internet distribution surely has a claim. It was made at the request of the Duke Office of News and Communications, and I have reason to hope it is helpful, even if it is not exciting. If viewers are seeking entertainment after listening to me drone through the rights issues they need to consider, it is worth while looking around at the other videos on the Duke Libraries YouTube channel; many are much more exciting.
Next is this video from JISC on Intellectual Property Rights in Web 2.0 world. It is a cute, colorful and nicely detailed discussion of rights and permissions issues that need to be considered as one creates new content for the web, and it points to an “online diagnostic tool” that will walk one through the issues in greater detail. One warning, however, is that because this video and diagnostic tool are created in reference to UK law, where there is no fair use provision, their suggestions for when permission is needed must be reconsidered by US citizen in the light of our fair use provision. Nevertheless, this is a helpful way of evaluating the issues and the various strands of rights that have to be considered, even if the conclusions will seem too strict to Americans.
The antidote to JISC’s lack of reference to fair use is this final video from the Center for Social Media on Fair Use and Online Video. The Center has been a great champion of fair use through its work to create best practices documents to guide filmmakes and teachers of media literacy. Now this video, and the accompanying best practices that it refers to, make the process of figuring out how and when fair use applies to allow a use without permission from the rights holder both clearer and rather entertaining. This, and all of the resources mentioned above, are additional tools for the ongoin effort to clarify copyright for our students, staff and faculty; it is nice to be able to point to such a array of different, and amusing, media
