The other side of the balance. August 26, 2008
Posted by Kevin Smith in : Authors' Rights, Fair Use, Technologies , add a commentWe are often told that copyright law is supposed to be a balance, offering, on the one hand, the financial incentive to creators that goes with monopoly rights and, on the other hand, sufficient exceptions to those monopoly rights to allow new creators to build on previous work. Without the latter half of this balance, creativity would effectively grind to a halt, and the incentive side would be useless. But most of the time, Congress and the courts seem to be serving the needs of those who want to profit from works already created at the expense of those who are trying to innovate and create new works. So it is especially pleasant to report on a couple of recent court decisions that can be seen as efforts to redress that imbalance and give some support to essential users’ rights.
First, there was the ruling in Jacobsen V. Katzer that essentially upheld the enforceability of an open source software license. Open source licenses are contracts (and that was part of the issue) that waive copyright, telling a downstream user that they are free to use the software in ways that would otherwise require permission, as long as they abide by certain conditions. In the Jacobsen case , such a license was challenged on several grounds — that it did not form an enforceable contract, that the terms of the license were not real conditions but merely “covenants” without legal teeth, and that the license was an attempt to enforce so-called “moral rights” which are largely not recognized in the US. The Federal Circuit Court of Appeals rejected these challenges and sent the case back to the District Court to be decided as a contract and copyright infringement case.
What this essentially means is that an open source license — and this likely includes the Creative Commons licenses often used in higher education as well as the more technical software license directly at issue — forms a contract between copyright holder and user that allows the user to use the work according to the terms of the license and lets the rights holder sue for infringement if those terms are breached. This is how these licenses are supposed to work, and it is nice to see a circuit court affirm their proper functionality. This ruling will make it easier for academics authors and other creators to share scholarly work without relinquishing total control.
One interesting part of this argument was the assertion about moral rights. It is quite true that the US protects moral rights, including the right of attribution, only for a small group of visual artists. But that fact does not show why an attribution license is invalid, it shows why such a license better serves the needs of many creators, especially in academia, then copyright law alone does. With an open access license an author can leverage their ownership of copyright to enforce the right of attribution when the law alone would not do so. And attribution, of course, is usually the most important reward an academic author gets from her work. That is why this recent decision upholding these types of licenses is so important well beyond the sphere of software development.
The other important development was a DMCA case that decided that, before sending a “takedown notice” alleging that some particular web posting infringes copyright, the rights holder must consider whether fair use would authorize the particular posting. This decision tracks the wording of the DMCA very closely, noting that the law permits takedown notices when the posting is not authorized by the rights holder or by law. Fair use, as the court correctly held, is a form of authorization by law (note my previous post here that noted that this has not been the case in previous DMCA practice). Therefore, a rights holder should not send a takedown notice in a case where a good faith consideration of fair use makes clear that the posting in question is not infringing.
The primary value of this second decision will be to limit the ability of rights holders to use the DMCA system to frighten people and to “chill” legitimate fair uses of commercial works. The particular case involved one of those transformative uses that are so highly favored in the fair use analysis — a 29 second homemade video of a baby dancing to the sounds of a Prince song. It should be obvious that such a video, even when available on YouTube, is not a commercial substitute for purchasing the song itself on CD or as an MP3. So the takedown notice sent to YouTube over this parent-posted video seemed abusive, designed more to intimidate than to protect legitimate commercial interests. Thus the court allowed the parents’ case against the rights-holder for misrepresentation under the DMCA to go forward, ruling that consideration of fair use is a prerequisite to the proper use of the DMCA takedown notice. This, too, is a victory for user’s rights and, even more important, for free speech in the digital world.
“Fixing” Fair Use? August 22, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use, Technologies , add a commentWhenever I hear suggestions that fair use should be “fixed,” I am reminded that there are two very different usages of that term. When you get your car fixed, it is returned to the state where it performs as it was meant to do. When you get your dog “fixed,” however, that is not the result. So I approach all suggestions for fixing fair use from the perspective that we do not want to render that important exception to copyright sterile and, thereby, unusable. We may want to fix fair use like you fix a car, but we must be careful not to fix it like you fix a dog.
From this admittedly cynical perspective, I was pleased by what I read in Mark Glaser’s “e-mail roundtable” on the question “Should copyright law change in the digital age.”
Glaser asks two lawyers — Peter Jaszi and Anthony Falzone — and two experts in new media — JD Lasica and Owen Gallagher — how fair use might be changed to better accommodate new uses like remixes that are made possible by digital technology. Interestingly, none of the four suggest actually tinkering with the language of section 107 itself, and both lawyers point out that the vagueness of fair use, while it can be maddening, is actually a strength. Only a flexible and dynamic (to use Jaszi’s words) doctrine can truly be technologically neutral and create the space necessary to experiment with new media and new uses that were unimaginable to the drafters of the law. What makes fair use frustrating and uncertain also makes it adaptable and supportive of creativity. “Fixing” fair use by removing its vague reliance on factors that can be applied in any situation would indeed be like fixing the dog.
Instead, these four experts discuss what might be added to our law to make certain uses that have become prevalent in the digital age less risky. By creating “safe harbors,” for example, that essentially immunize certain acts, at least when done for non-commercial purposes, the fear of using fair use, and the cost of adjudicating it, can be reduced. Lasica goes further and suggests some additional positive rights that could be incorporated into the copyright law, such as the right to make personal back-up copies, to time-shift and to change formats. Both of these suggestions would leave the fundamental structure of fair use, vague and flexible as it is, intact; they would simply take some common digital uses outside of its purview. Fair use would still allow for new technologies and creative uses not yet conceived, but the cost of reliance on fair use would be reduced by specific exceptions for activities that are now well-known and clearly of benefit to consumers. These proposals exemplify the right way to “fix” fair use.
A template for authors’ rights, and a modest proposal August 19, 2008
Posted by Kevin Smith in : Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing , 2commentsThe Association of Research Libraries has just released an article written by Ben Grillot, a librarian and law student working as an intern for ARL, that is advertised as a summary of the policies of twelve publishers toward deposit of NIH-funded research articles into PubMed Central. In fact, Grillot’s article has a value well beyond the modest comparisions announced by its title.
I won’t attempt to summarize Grillot’s analysis or conclusions here; he writes so clearly and concisely that any summary would seem awkward and wordy in comparison. Suffice it to say that Grillot does a superb job of limning the ambiguities that need to be resolved as publishers come to terms with the new NIH public access mandate, as well as the competitive advantage that will be gained by those who resolve those unclear points quickly and fairly. The easier deposit in PubMed Central is made, the more a publisher will stand out from the crowd. But beyond its comparative analysis, Grillot’s article provides a kind of template that authors should consider whenever they are confronted with the choice of publisher for their research and with a publication agreement. His lucid explanation of the various provisions in the selected agreements, which themselves are usually far from lucid, offers a model for what questions a scholarly author should ask of the agreements she sees and how she should think about the way those questions are, or are not, answered.
Two quick points struck me as I read Grillot’s article beyond those conclusions that he reaches. First, I think many authors would be very surprised at just how limited their rights to make their own work available to others are when they sign publication agreements. We are often told that “most” publishers now support open access. But most also impose an embargo on such access, and during that embargo an author is often not able to place her own work on her personal website (about half the journals do not allow this, at least for the final author’s version), and is very unlikely to be able to post the work to a disciplinary website or institutional repository (7 or 8 of the 12 journals examined by Grillot do not allow this). The very limited set of open access rights retained by authors under these standard publication agreements argues forcefully for the approach taken recent by the Harvard Arts and Sciences faculty to grant Harvard a license for use in an institutional repository prior to any transfer of copyright to a publisher.
The second thing that caught my attention is the brief notation, in a footnote to table 2, that Oxford University Press charges authors more for participation in their “author pays” open access program if the author is affiliated with an institution that does not subscribe to Oxford’s journals. Authors’ rights are thus directly and explicitly tied to institution’s expenditure of monies with that publisher. No doubt this linkage between authors’ rights and institutional subscription makes business sense to Oxford, and far from criticizing it, I suggest that institutions emulate it. Whenever we negotiate a new contract for a journal database, whether a new acquisition or a renewal, we should insist that the rights that authors at our institutions who publish with that publisher retain are spelled out. For some of us it has seemed inopportune to tie the rights of individual scholarly authors to our enterprise-wide subscriptions, but it is starting to seem more and more logical. The decision by Oxford to link its grant of authors’ rights to the institutional purchase of its products convinces me that it is now time for our library acquisitions departments to start insisting that that linkage become a two-way street.
Updates on NIH Public Access August 12, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentIt seems like a good time to collect some of the interesting news items coming out lately about the NIH Public Access Policy, which has now been mandatory for just over 4 months. Most of these items come from Peter Suber’s Open Access News blog, to whom we direct a sweeping tip of the hat.
First is the important clarification that NIH issued about how author submission occurs. In greatly simplified language, the NIH outlined four methods by which submission can happen — publication in a journal that has an agreement to put all of its contents in PMC, arrangements with the publisher for deposit of a specific article, self-deposit of the article, or completion of the deposit process when the publisher has sent the final peer-reviewed manuscript to PMC. For more details, see the NIH policy home page.
Next came this report in Library Journal that submissions to PubMed Central have more than doubled in the six months since the mandatory policy was passed by Congress.
Then last week Oxford University Press announced that it would begin depositing articles that are funded by NIH for authors. In effect, this means that Oxford authors will be selecting the fourth of the methods NIH has identified, which is much easier for Oxford authors than the self-deposit on which they had to rely up till now.
Finally there is this note from Library Journal Academic Newswire, which both reports on the OUP decision and notes that NIH is confirming the fact that most journals which handle deposit for the authors are selecting a twelve month embargo on the articles, the longest embargo currently permitted by law.
Taken together, I think these reports indicate two things. First, the Public Access Policy is working, by which I mean that public access to bio-medical research is increasing dramatically without creating any real danger to the publishing industry. The announcement by OUP that they would cooperate in depositing articles indicates that publishers are coming to terms with the requirement and accepting it. Even the news that most publishers elect the 12 month embargo is a sign of growing accommodation; that overly-long embargo provides even the most skittish publishers enough security to adapt to the growing open access movement. Shorter embargoes are undoubtedly sufficient to protect publisher revenues, but the move to those shorter delays will have to take place gradually, as more and more publishers realize that, whatever the threats to their traditional business models are, NIH Public Access is not one of them.
Second, I hope that we are seeing an awakening realization on the part of scholarly authors that they have genuine choices as they consider how to disseminate their work. The soaring PMC submission rate, and the decisions by major publishers not to resist it, suggest that making submission easier for authors is rapidly becoming a competitive advantage. As authors realize that they have control over their work for as long as they retain copyright ownership, publishers might have to take on a service role they have never really played before, competing for the best scholarship by help authors meet the requirements of the funders who underwrite the research.
More on e-textbooks August 9, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing, Technologies , 1 comment so farA few weeks ago I did a post suggesting that universities should look at digital textbooks, both licensed and open access, as a way to help students reduce the cost of higher education. The reauthorization of the Higher Education act, with several provisions related to monitoring of costs, reminds us that lots of eyes are watching that topic.
A couple of recent news items suggest the richness of the opportunities, both for education and for innovative business models, that online textbooks can offer.
First there is this interview with Eric Frank, a founder of Flat World Knowledge, about that company’s venture into creating textbooks that will be freely available online and also can be purchased through a print-on-demand service and even as an MP3. Frank explains very clearly the imbalances of the current system for publishing textbooks, where high prices drive a thriving used book market that undermines sales and drives prices even higher and where new editions are created not because of changes in the field of study but in order to renew revenues lost to used book sales or piracy. More importantly, Frank describes in considerable detail the alternative business model that Flat World is pursuing, which combines a more consistent revenue stream with free availability for those who want only online access and many flexibility features for both the original author and other instructors to change and adapt the books for specific pedagogical needs. Flat World has at least 15 schools on board to experiment with its new model for textbook delivery; it is a beta test that should be carefully watched — whether or not it succeeds, it will provide valuable lessons about how we might harness the educational potential of online publishing and break the strangle hold of out-dated business models.
On a more whimsical note there is this brief article from the ABA Journal about a law professor who wants to create an animated “case book” for tort law. Professor James Cooper from California Western is proposing that animated videos of some of the most important cases in tort law be available on YouTube for students to study. This is obviously not just an impractical whim; Prof. Cooper has produced numerous short videos on legal topics (available here), including a public services announcement on DVD piracy called IP PSA (in Spanish).
My first thought about this was that the famous case in which NY Court of Appeals Judge (later Supreme Court Justice) Benjamin Cardozo decided that tort liability did not exist when the harm caused was unforeseeable would make a great video. That case, Palsgraf v. the Long Island Railroad Company, has great dramatic elements — a moving train, an exploding package of fireworks and a huge set of scales yards away falling on an innocent bystander. It is a set of facts that a first-year student is unlikely to forget, if they read the case in the first place. Unfortunately, the pressures of law school and the arcane nature of some of the opinions leads many students not to bother. The animated gallery of cases that Prof. Cooper suggests cannot replace traditional law school methods, but it could provide a helpful supplement. And since federal judicial opinions are almost always available on the open web, it is at least possible that a combination of this YouTube gallery with some sophisticated linking and added commentary could replace a casebook with an alternative both more economical and more likely to get students’ attention.
The “Law Librarian Blog” asks if this idea is innovative or insulting. From my point of view (as a relatively recent law school graduate), it is both innovative and representative of the kind of experimentation that needs to be taking place. Animation may not be the future direction of law school instruction, but all such experiments will help us arrive at a clearer vision of what that future can be, and they help us break the grip of traditional notions that are no longer working.
