Moving beyond the photo album August 27, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing, Technologies , 1 comment so farLast week G. Sayeed Choudhury, Associate Dean for Library Digital Programs at Johns Hopkins University, came to Duke to talk with the staff of the Libraries about e-scholarship and the changing role of the university library as part of our strategic planning process. His presentation and conversations were fascinating, and we were left with a great deal of thought-provoking material to consider. I was particular struck by one observation, which was actually Choudhury quoting from a 2004 article that appeared in D-Lib Magazine by Herbert Van de Sompel, Sandy Payette, John Erickson, Carl Lagoze and Simeon Warner. In the article, “Rethinking Scholarly Communications,” the authors assert their belief that “the future scholarly communications system should closely resemble — and be intertwined with — the scholarly endeavor itself, rather than being its after-thought or annex.” The article further makes the point, perhaps more obvious now that it was five years ago, that “the established scholarly communications system has not kept pace with these revolutionary changes in research practices.”
In developing this point, Choudhury talked about the traditional research article as a “snapshot” of research. Those snapshots are increasingly far-removed from the actual research process and have less and less relevance to it. Indeed, the traditional journal article seems more like a nostalgia item every day, reflecting the state of research on a particular topic as it was at some time in the past but beyond which science will have moved long before the formal article is published, thanks, in part, to the many informal ways of circulating research results long before the publication process is completed.
Choudhury called on libraries to move past a vision of themselves as merely a collection of these snapshots and become more active participants in the research process. He recounted a conversation he had with one researcher who, in focusing on the real need he felt in his own work, told Sayeed that he did not care if the library ever licensed another e-journal again, but he did need their expertise to help preserve and curate his research data. The challenge for libraries is to radically rethink how we spend our money and allocate the expertise of our staffs in ways that actually address felt needs on our campuses and do not leave us merely pasting more snapshots into a giant photo album that fewer people every day will look at.
Recently I have seen a lot of fuss over an article that appeared in the Times Higher Education supplement that posed the question “Do academic journals pose a threat to the advancement of science?” The threat that the article focuses on is the concentration of power in a very few corporate hands that control the major scientific journals. But read in the context of the radical changes that Choudhury, Van de Sompel and others are describing, it is clear that the threat being discussed is not a threat to the advancement of science but to the advancement of scientists. Scholars and researchers have already found a way around the outmoded system of scholarly communications that is represented by the scientific journal. The range of informal, digital options for disseminating research results will not merely ensure but improve the advancement of science. All that is left for the traditional publication system to impede is the promotion and tenure process of the scientists doing that research.
This, of course, is the rub, especially for libraries. Traditional scientific journals are increasingly irrelevant for the progress of science, but they remain the principal vehicle by which the productivity of scholars is measured. One researcher told Choudhury very frankly that the only reason he still cared about publishing in journals was for the sake of his annual review. Sooner or later, one hopes that universities will wake up to the tremendous inefficiency of this system, especially since the peer-reviewing on which such evaluations depend is already done in-house, by scholars paid by universities but volunteering their time to review articles for a publication process with diminishing scholarly relevance. Nevertheless, the promotion and tenure system still relies, for the time being, on these journals, which presumably cannot survive if libraries begin canceling subscriptions at an even faster rate. The economy may force such rapid cancellations, but even if it does not, pressure to move to a more active and relevant role in the research process will. The question librarians must ask themselves is whether supporting an out-dated system of evaluating scholars is a sufficient justification for the millions of dollars they spend on journal subscriptions. Even more urgently, universities need to ask if there isn’t a better, more efficient, way to evaluate the quality of the scholars and researchers they employ.
A model copyright law August 22, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, international IP , 1 comment so farBack in April, when I was writing about the experiences I had at the eIFL-IP conference in Istanbul, I referred several times to the “Draft Law on Copyright, Including Model Exceptions and Limitations for Libraries and Consumers.” A copy of the Draft Law was distributed to the IP Conference participants “hot off the presses.” When I mentioned it back in April, I promised to provide a link as soon as it became available on the eIFL website. I am now delighted to be able to direct folks to the full text of the Draft Law, available as a PDF and soon to have an HTML version accompanying for easy browsing.
The goal of the Draft Law is to provide librarians and their legal advisers with practical ideas to help them understand and influence the policy making process when national copyright laws are being revised. It is directed toward developing countries, from which the majority of eIFL’s membership is drawn. But there is much for all of us, in the US and the EU as in the developing world, to learn from this document. Its clear set of definitions and the explanatory notes that accompany each exception and limitation make it ideal for gaining a synoptic view of the state of international copyright law. Most important is the consistent focus on the public interest and the socially beneficial purpose that copyright law is intended to serve.
It has become a regular complaint about international copyright law that great strides have been made in harmonizing the levels of protection for intellectual property around the globe, but little effort has been made to harmonize limitations and exceptions. Indeed industry lobbyists and even the U.S. Trade Representative often pressure developing countries to adopt draconian levels of IP protection while encouraging them to ignore or drastically limit the role of limitations and exceptions. The result is often that copyright law becomes an obstacle to intellectual and creative development in many countries. The World Intellectual Property Organization has seemed to awaken to this problem over the past two years, and has recently included copyright limitations and exceptions as part of its discussion, especially in the context of it’s so-called “development agenda.” The eIFL Draft Law is an important contribution to this vital discussion, especially because it offers model limitations and exceptions that are designed to facilitate access to knowledge and the public interest. It is a document that deserves study in both the developing and the developed world as we consider how IP law can serve its purpose of encouraging learning and creativity rather than stifling them.
Choosing between reform and revolution August 13, 2009
Posted by Kevin Smith in : Copyright in the Classroom, Fair Use, Scholarly Publishing , 5commentsA recent article by Steven Shavell called “Should Copyright of Academic Work be Abolished” caught my notice, as I am sure it did for many others, because of the radical question posed in its title, but it ultimately focused my attention on a different article altogether. I hope to have more to say about Professor Shavell’s work in a later post, but here I want to record my initial reaction, which was that copyright in academic works need not be abolished but should be heavily reformed. And the best reform I can think of (short of legislative revision) is the re-evaluation of fair use, based on more attention to the second fair use factor, that is suggested in Robert Kasunic’s article “Is That All There Is? Reflections on the Nature of the Second Fair Use Factor.”
The second fair use factor – the nature of the copyrighted work – is usually treated very mechanically by courts, and sometimes is ignored altogether. When it is discussed, it is in a few sentences addressed to only two issues – whether the work is published or not and whether it is creative or factual. Kasunic, who is Principal Legal Advisor to the Copyright Office, suggests that this treatment seriously undervalues the importance of this part of the fair use analysis. He argues convincingly that the second factor, when examined carefully, offers a wealth of information that could improve consideration of all of the fair use factors. Indeed, one of his major points is that the fair use factors are a guide for fact-gathering, not a mechanical “tally sheet” or scorecard.
If courts pursued the probing questions about the nature of an original work that Kasunic suggests when considering a claim of fair use, the result for academic work would be, I think, truly revolutionary, because those courts would learn how much more leeway should be accorded to academic work than would be appropriate for other types of work. Kasunic argues that part of the scrutiny that should be applied to the original work would ask what the particular incentive structure for that type of work is. When the purpose of copyright law is understood properly, as a mechanism to give incentives for creation, the expectations of the authors and creators are really the only guide for what uses should be compensated and what uses need not be. Thus it is important to ask what the normal incentives for creators of that particular type of work are and what markets supply those incentives. Unexpected markets, or markets that benefit only secondary owners of copyrights rather than authors, are not relevant in deciding if a particular use is fair or not.
When academic work is considered, it is clear that the scope of fair use would be very broad under this more sensitive and sensible analysis. Academics are usually not paid for their most frequent works of authorship, journal articles, and compensation for books authors is meager. Thus the protection of various markets s not necessary for this type of work in order to effectuate the purpose of copyright; incentives for authors clearly come from some place else. Also, it is usually a secondary copyright holder who is trying to protect those markets, which further reduces their value as an incentive for creation. Finally, secondary markets, such as permission fees for electronic reserves and course packs are usually wholly unexpected, and therefore have no incentive value, from the point of view of academic authors. In fact, I once had a faculty author ask me if a check from the Copyright Clearance Center was some kind of scam, so unexpected was the tiny windfall he was being offered.
As Kasunic points out, different types of authorship receive different rights under our copyright law; it is logical, therefore, to also think about fair use differently depending on the specific facts that surround the creation of a particular category of work. Academic works would, in such a fact-specific analysis, be subject to much more fair use than a commercial novel, film or song. Indeed, Kasunic selects as the example with which he closes his article the case of academic authors and fair uses claims for course packs and electronic reserves. Although he does not spell out a conclusion, it is clear from his discussion that the facts uncovered by the searching analysis he recommends would greatly favor a liberal application of fair use for that type of work.
Since an actual case such as Kasunic describes is currently being litigated – the lawsuit against Georgia State University alleging copyright infringement in the distribution of electronic course readings – it is hard to resist reading his article with that case in mind. Kasunic presents, to my mind, a compelling argument that the court should look very careful at why the works in question were created in the first place and focus a fair use finding on the incentives for creation and not extraneous claims for windfall profits made by secondary copyright holders. This would be a sensible application of a factor that has largely been treated as unimportant; it would take seriously the intent of Congress and their instructions to courts when they codified section 107. And it would dramatically increase the likelihood that many of the uses in question at Georgia State (at least those uses that involve academic writings) would be found to be fair use.
Libraries versus Salinger? August 6, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentOn Monday three major library associations, along with several other groups dedicated to supporting free expression and new creative work, filed a “friend of the court” brief in the appeal of the decision made in June to issue an injunction prohibiting the US publication of “Sixty Years Later: Coming Through the Rye,” a continuation of the story of Holden Caulfield that was begun in J.D. Salinger’s “Catcher in the Rye.” I wrote several times about the case last month, and had a small role in rounding up the “amici” who participated in the brief, but I read the final product for the first time last night. A couple of points struck me in the section of the brief addressing fair use that I would like to highlight. A discussion of the case, and the arguments presented by the library organizations, from Tony Falzone, the Counsel of Record on the brief, can be found here.
First, I was struck by the excellent arguments made about how vital fair use is to supporting new creation, especially in the realm of creative literature. As theologians (and Julie Andrews) have known for years, nothing comes from nothing, and the edifice of creative writing is always built on an extensive foundation. From Shakespeare to Leonard Bernstein, Charles Lamb to Stanley Fish, new authors and literary critics use the grist provided by earlier writers to feed their imaginative mills. In this context, the brief quotes a really amazing question from the judge who issued the injunction being challenged. During the hearing she asked, in response to the argument that “Sixty Years Later” offered readers a new way of looking at the now quite old story of “Catcher,” “do people need [the new] version in order to view the story differently? How about just reading it twice, or maybe five years later..” Of course, this is not how literature or literary criticism works. New works are never sui generis (not even Catcher in the Rye), and Judge Batts’ logic would deprive each new author of those giants upon whose shoulders, Issac Newton famously reminded us, we must all stand if we wish to see clearly. Salinger may not think of himself as such a giant (and I admit I do not either), but he still cannot be afforded the level of control over future works that he seeks and that the court erroneously granted to him.
The depth of the problem is illustrated by the other aspect of the brief that caught my attention. I had noted before that Judge Batts argues that some authors might actually have an additional incentive to write if they new that they would be protected from sequels and criticism; if they were assured, in effect, that they would have the last word regarding the characters, events and ideas about which they wrote. What I had not seen, but the brief points out, is that the Judge is here importing the concept of “moral rights” into US law. Many countries do recognize the moral rights of attribution and “integrity” — the right to protect a work from alteration. The United States does not recognize these rights, with one very limited exception, and restricts the copyright incentive to economic rewards. The District Court ignores this policy decision, presumably made to support the free expression of ideas that is necessary for a democratic society, in favor of serving the desire of a author from a previous decade to exercise extraordinary control over the future of the ideas and characters he published. As the brief points out, the is no logical endpoint to the reasoning evoked here; if an author were incentivized by protection from negative reviews or parodies, shouldn’t we forbid those as well? This is not how copyright works, because its fundamental purpose is to encourage new creativity, while the Judge’s reasoning would create a sterile world in which creative dialogue would be impossible.
One of the news reports about the filing of this brief carries the title College Libraries v. J.D. Salinger. It struck me as I read the brief how unfair that tile is. Librarians traditionally have great respect for authors, and libraries serve authorship by being places where the great ideas and expressions of the past are readily accessible to current writers and scholars. Unfortunately, it is Salinger’s efforts to use copyright to ban a new book that is incompatible with both the mission of libraries and the purpose of copyright law. Both libraries and copyright law support fundamental democratic values — free expression and the “marketplace of ideas” that asks each new intellectual creation to prove its worth by submitting to examination, criticism and even parody. Occasionally copyright is wielded as a weapon, as in this case, to try an insulate some author from that rough-and-tumble exchange of idea. When libraries oppose those efforts, they are calling both copyright law and authors in a democratic society to stay true to themselves.
