Use case on NIH Public Access June 10, 2008
Posted by Kevin Smith in : Copyright Information Notes , 2commentsAnother question that is becoming common is about how to comply with the National Institute of Health Public Access Policy. The answer presented here was to an inquiry about an article accepted for publication in the journal “Nature,” whose policy about compliance is fairly well-publicized and easy to find. The specific steps that an author must taken to be sure they have the rights necessary to authorized deposit (or to be sure the journal will deposit for them) will vary with each publisher; where there is uncertainty about the policy or negotiations required, the answer will be much longer that this one.
Dear Professor _____________,
Congratulations on the paper! The first step in complying with the NIH public access policy is to be sure you retained the right to deposit the article when you signed a publication agreement. If you signed Nature’s usual author’s license, a copy of which is available here — http://www.nature.com/nature/authors/submissions/final/authorlicense .pdf — there will not be any problem. That license allows the author(s) to retain copyright, although it gives Nature an exclusive right to publish, and it specifies that the author can place the article in a funder’s open access database subject to a six-month embargo.
Assuming that this is the license you signed, your next step is to actually deposit the article in PubMed Central. You do this using the NIHMS system; there are instructions and links here — http://publicaccess.nih.gov/submit_process.htm . We are being told by those who have used it that the submission process is fairly easy and straightforward. Nevertheless, if you have any difficulties, just let me know and I or one of the librarians will be glad to come to your office and help you with it.
Once you have submitted the article, along with any supplemental material, all you have to do is wait. NIH will send you, or the principle investigator named on the appropriate grant if that is someone other than you, a final copy of the article as it will appear in PubMed Central for verification. It is important to review the article at that time to be sure everything is correct, just as you would do with the page proofs for the journal, and respond to that e-mail.
At some point in the process you will be asked to verify that you have the right to authorize PMC availability and to tell PMC about any embargo. As I said, if you signed the usual Nature license you do have the right to authorize availability and you should indicate a six month embargo. Even though you should submit your article immediately, it will not appear in the PMC database until six months after publication in Nature, in accordance with your license obligation.
For future reference in any paperwork submitted to the NIH, you will need to obtain the PMC ID number for your article. This helps NIH track compliance with the policy and is now required on renewal applications, progress reports and the like. Again, library staff can help you find this number if you have any difficulty.
The timeless folly of DRM June 6, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management , add a commentThere is a good deal of value in reading older works, even in a field that changes as rapidly as copyright. It is a fascinating exercise, for example, to read attempts in the late 1960’s and early 1970’s to influence the direction of the “new” copyright law being considered (which was passed in 1976). L. Ray Patterson’s “Copyright in Historical Perspective” (Vanderbilt University Press, 1968), for example, or now-Justice Stephen Breyer’s 1970 Harvard Law Review article on “The Uneasy Case for Copyright,” offer an all-too-contemporary sounding warning about the doleful consequences of writing a copyright law that does not pay enough attention to users’ rights or assumes that the concerns of industry as expressed at a particular moment should be enshrined in a statute meant to function for decades.
James Lardner’s 1987 book about the development of video recording devices and the subsequent copyright consequences, “Fast Forward: Hollywood, the Japanese and the Onslaught of the VCR” (Norton) is another example of an older work from which there is still a lot to learn (my principle embarrassment in discussing the book lies in revealing yet again how often my own reading follows suggestions made by Bill Patry). As I read the book this weekend, I was struck especially by a small remark that, to me, reflected on a mistake the content industry cannot seem to stop making.
During the district court trial over the issue of whether Sony’s Betamax device created liability for its maker due to copyright infringement, the trial judge, Warren Ferguson of the Central District of California, refused to allow the attorneys for Universal and Disney to put on a rebuttal witness who would argue that the court could reasonable force Sony to adopt a technological measure that would permit the non-infringing purposes Sony (with the help of Mr. Rogers, among others) had demonstrated for the VCR while preventing unauthorized recordings of broadcast TV. A “jamming device” was suggested that could, the witness would have asserted, be incorporated into all VCRs at a (relatively) minimal cost and would block recording of programs unless the broadcast chose to permit those recordings. Sounds a lot like the “broadcast flag” argument and the recent flap over Microsoft Vista preventing the download of some NBC TV programs, doesn’t it?
We are still wedded to the idea of technological solutions to the problem of unauthorized uses, and we have now gone so far overboard as to give legal protection to such technological systems, even when the have the intent and /or the effect of prevent perfectly legal uses or of reducing access to works no longer protected by copyright. And we continue to pursue a DRM “arms race” in which each new system is seen as a challenge in the user community and few last more than a couple of weeks before keys and hacks are discovered. The wisdom of Judge Ferguson’s words in refusing to entertain this burdensome and unwise “solution” in Sony are, as yet, unheeded: “As sure as you or I are sitting in this courtroom today, some bright young entrepreneur, unconnected with Sony, is going to come up with a device to unjam the jam. And then we have a device to jam the unjamming of the jam, and we all end up like jelly.” Now that this headlong plunge into chaos has been enshrined in section 1201 of the Copyright Act, Judge Ferguson (whose original decision in the case was ultimately affirmed by the Supreme Court) seems more and more like a prophet to whom we should have listened.
Imagining Fair Use June 3, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentA recent decision by a federal judge in New York is another example of the heavy preference for “transformative” uses in the fair use analysis. The case involves the use of a short clip from John Lennon’s famous song “Imagine” in the anti-evolution movie by Ben Stein called “Expelled.” The movie purports to be a protest against the lack of “intellectual diversity” in American schools; specifically that they do not represent the position known as “intelligent design” in science classes. The clip from “Imagine” is used to try, in a very heavy-handed way, to link science education to anti-religious bias, such as is allegedly found in Lennon’s song.
The judge has rejected a request by the Yoko Ono for a preliminary injunction that would prevent the distribution of the film. Ono claimed that the use of this short clip without her permission was copyright infringement. Given the vastly different political perspectives involved, it is unlike permission would have been forthcoming. But the judge ruled that it was also unlikely that permission was necessary, since there was a strong claim that the use was fair use. Since one of the criteria for getting a preliminary injunction is “likelihood of success on the merits,” Ono’s request was denied because the judge felt it was unlikely she would succeed on the underlaying claim that using the clip was infringement.
Transformative uses, which have recently been the subject of many, if not most, successful assertions of fair use, are those which create a non-competitive product or subject a copyrighted work to criticism, comment or parody. A parody, of course, does not compete in the same market for the original (no one buys a 2Live Crew parody song as a substitute for buying the original by Roy Orbison). Nor does the film Expelled compete in any way with the market for the recordings of John Lennon. And in a traditional transformative use case, the owner of the original may not have much desire to license the use if asked, since the proposed new use often subjects the original to criticism or ridicule (as in this case). Transformative uses are often those uses where there is a strong possibility that the copyright owner in the original work would use his or her rights to suppress the new speech; fair use is the remedy that prevents this censorship by copyright.
For me, this role of fair use in preserving copyright as the “engine of free expression” is especially clear in this case (for an explanation and discussion of this quote from Harper & Row v. Nation Enterprises, see this report from The Free Expression Project). Free speech is always hardest to accept, and most important to remember, when one disagrees violently with what is being said. In this case, I personally have little use for the claims being made in the movie “Expelled;” they strike me as inflammatory and hard to defend with real logic or facts. Nevertheless, the right of the movie producers to make those claims is inviolate, in my opinion, and it is important that they have the tools to make their case in the best way the can. Fair use is an important tool to support creative expression, whether I agree with the content of that expression or not. The arguments being made in the movie may fail, but the judge got this decision exactly right when he ruled that the producers could use the tools they did (including a small part of another’s copyrighted expression) to make those arguments.
A copyright use case on film screenings May 31, 2008
Posted by Kevin Smith in : Copyright Information Notes , add a commentI have recently been answering several questions that seem to recur, in one form or another, quite frequently. As an extension to the copyright widgets that were well-received over the winter, therefore, I want to offer somewhat generic versions of these questions, along with my answers. I hope they will be useful to others, and even might spark discussions that will both improve my responses and benefit readers of this blog.
This first question was a version of the very common inquiry about when campus showings of films require either public performance rights or a license. The particular inquiry involved a group of films on a speific theme that were already owned by the University Libraries; the questioner, from one of our interdisciplinary centers, wondered rather generally about the legal requirements for show some of these films to groups.
The starting point is that a copyright owner has the exclusive right to authorize public performances of their works. For most films, the copyright owner will be the production company. A public performance is any performance given to a group other than the “normal circle of a family and its social acquaintances,” so almost all performances on campus (other than in a dorm room) are likely to be considered public.
There is one relevant exception to the general rule that the copyright owner has the sole right to allow or forbid public performances, and there are two general ways in which permission is obtained when that exception does not apply.
First, the exception is for performances “in the course face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction.” This broad exception is what allows the screening of films in classrooms by course instructors all over most college campuses, but there are also many campus screenings to which it does not apply. The language of this exception does not limit the allowed performances only to credit-bearing courses scheduled by the registrar, so there is apparently some leeway here. If a regular student group that meets for a clearly educational purpose wants to view a film, for example, I think that performance is allowable under the exception and does not require permission, especially if there is a faculty advisor for the group or some other clear connection to the institution’s curriculum.
On the other hand, campus showings of a film solely for entertainment (such as college film societies) or to which a general invitation is extended so that people with no connection to a specific educational focus of the institution might attend seem outside the scope of the exception. These sorts of showings have traditionally been based on some form of permission.
One way in which permission is obtained is by renting a copy of the film from an agency that includes a license for public performance in the fee charged. Campus film societies often use such an agency; Swank (http://www.swank.com/) is one that is a common source for campus licenses.
In this case, since the university already has the films, the next question would be whether any of them were sold with public performance rights. Some films purchased by the library do have such rights and some filmmakers only sell their work that way; generally these films cost about 10x more than a film without public performance rights, so price can tell us a lot about whether such rights were obtained (although it is not definitive).
Based on the general tone of the question, it sounds like the performances suggested would require permission, but since extensive detail about the intended audience for the films was not given, only the questioner ultimately will know enough to decide if these are public performances that fall outside the scope of the exception for face-to-face teaching activities.
Reducing the number of orphan works in the world May 23, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 1 comment so farThe two orphan works bills currently under consideration in Congress share many common features, the most obvious one being that both address the problem of orphan works by drastically reducing the penalties for using such a work without permission. They also both would create a very burdensome process for determining that a work is sufficiently likely to be an orphan to justify the reduced penalties in the presumably rare case that the user was mistaken.
These bills have gotten mixed reactions from the library and copyright communities in higher education. The American Library Association has indicated some level of support for the Senate version of the bill, while Public Knowledge and the Electronic Frontier Foundation have both strongly endorsed the Congressional efforts. Several individual voices for which the academic library community has great respect, however, have indicated opposition. Kenneth Crews suggests his reservations, while also criticizing the campaign against the bills, in this blog post, while Lawrence Lessig’s opposition was expressed forcefully in this New York Times Op-Ed.
My opinion is that the bills might do some good in a few situations, but they will not accomplish much. Part of the problem is that they are “remedy-based” solutions; they simply remove some of the risk attendant on using orphan works or, to look at it from the other perspective, the protection copyright owners have against infringement (Lessig puts the situation this way, but I am afraid that this formulation doesn’t recognize that for most of the works we are talking about, there really is no rights owner whose protection would be decreased). But in any case, these bills would do nothing to curb the ever growing number of orphan works. So I want to examine some of the alternatives to a remedy-based solution to orphan works and consider changes in the law that might actually reduce the number of orphaned works that now burden our copyright system.
Lessig suggests one such strategy in his NYT piece when he argues that a more efficient and fair solution to orphan works would be to reestablish a renewal process and give new materials only a short initial term. Thus authors and artists who did not plan to commercialize their works after that short initial period (during which the vast majority of works exhaust their value) would allow those works to pass into the public domain. Those who did plan to continue to protect and exploit their works would pursue a very simple, inexpensive renewal. This would clear reduce the orphan works problem going forward, although it would not help with the many orphans already in our collections. The biggest objection to this plan, however, is that it reduces “formalities” into the enjoyment of copyright in contradiction to obligations the US agreed to when it adhered to the Berne Convention and the TRIPs agreement. Those international treatises do not permit formalities, which is a big reason we went to automatic protection in the first place. It is true that the US has been quite inconsistent in complying with the various obligations we took on with Berne and TRIPs, so this objection is probably not insurmountable. But it would be a major argument to be used against such a change, and it would probably prevent Congress from enacting a renewal requirement.
There are a number of other ways to imagine changes in the law that would reduce the problem of orphan works, either by focusing on the commercialization of particular works, as Lessig’s suggestion does, or by taking advantage of efficiencies gained by returning ownership of unexploited works to the original authors or creators. An upcoming post or two will examine some of those other possibilities.
