Copyright Report, #8

A bit rushed, but lots of content here!

Libraries are not anti-copyright. No, really.

I am a co-signatory on a letter sent today to the heads of the House and Senate Judiciary committees, who have expressed interest in updating/tinkering with current US copyright law. Among other suggestions, they are interested in removing the Copyright Office from the Library of Congress. This is a valid policy position, but many advocates for this position uncharitably characterize librarians as having no respect for creators (sometimes, bafflingly, because we are all just Google shills(?!?!???)). Even many of the more charitable advocates frame the discussion by explaining that copyright and libraries are inherently in tension, especially because libraries are about providing free public access to information and cultural materials.

That’s weird.

I thought -copyright- was about increasing the publicly-accessible stock of information and cultural materials.

Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

United States Constitution, Article I, Section 8

Even if you don’t agree with my reading of the Constitution’s intellectual property clause, and take the purpose of copyright as only about securing benefits to authors and creators, there are SO MANY things libraries do that benefit authors and creators. Here’s a few:

  1. We buy content.
    (Holy crap, do we buy content. We get portrayed as being all about copying without permission, when even small public libraries spend thousands of dollars each year, buying content.)
     
  2. We connect content with audiences.

    [D]on’t ever apologise to an author for buying something in paperback, or taking it out from a library (that’s what they’re there for. Use your library). Don’t apologise to this author for buying books second hand, or getting them from bookcrossing or borrowing a friend’s copy. What’s important to me is that people read the books and enjoy them, and that, at some point in there, the book was bought by someone. And that people who like things, tell other people. The most important thing is that people read…”
    ― Neil Gaiman

  3. We help creators with logistics.
    I cannot count the number of people to whom I have explained a) that they already own copyrights in their works and b) that registration may be beneficial anyway (and how to register.)
    I also consult a lot with people who want to both share stuff online -and- control its use, and so I spend a lot of time both helping people figure out ways to -maybe- do that successfully, but also advising them that that is, practically speaking, almost impossible, so it may be to their benefit to sometimes not share.
     
  4. We help people who are making new stuff out of old stuff (as ALMOST EVERYONE making new stuff is)
    And by “help”, I mean: provide access to existing materials that are the building blocks of scholarly and artistic creativity, and help new creators understand how they can legally use existing stuff.
    I once had someone on a committee I was on tell me, to my face, that we do not tell users about getting permission and legal open content, or that what they may be able to do as students is not the same as what they may be able to do in business, and I was just, like, “um… here’s some links from my workshops… and from our media services librarian teaching students how to legally make videos… and here’s our Copyright Permissions Service where UMN-affiliates can get help with permissions for zero fee paid to the Libraries even though we pay the salaries of the AWESOME staff who run the service…”
     

Please do read the letter (written with more eloquence than I can muster) where these issues are addressed in more detail.

Copyright Report, #7

Picking up where I left off several months ago, some recent news on the copyright and academic-IP fronts…

General copyright news/info

Extremely off-topic: -chilly- weather bike gear

We’ve recently hit true fall weather in MN, with morning temps consistently in the mid-40s to mid-50s °F (that’s like 7-13 °C for normal parts of the world.) This is the temperature range where biking can start to be uncomfortably cold for many riders, especially in everyday clothes. BUT it’s also a part of the year when biking can be really gorgeous and -just a teeny bit- of useful gear may make it totally comfortable in ways that even largish amounts of slightly ridiculous gear don’t entirely achieve in the dead of winter.

Things to put on your body

Gloves. I like full-finger wind-blocking bike gloves (I have these, and especially like the reflective patches for signaling turns, but YMMV.)

Full hand in lightweight black glove with reflective gray stripe. Hand is resting on bike handlebars, which are leaning against a windowsill in the background.
Glerrrve.
A colleague recently told me that she likes lightweight knit gloves at this time of year, for the breathability. I find the breathability of the bike gloves pretty good, and appreciate the grip on the palms. (Lest you think I’m too big a fan of single-purpose clothing – my retired pair of full-finger gloves (got a hole in one finger) is my go-to for moving furniture in my house. Due to the grippiness of the palms, without sweaty insulation.)

Head-covering – note, probably NOT a hat. This is the time of year my ears can start to get cold while riding, but once I’m moving, it’s definitely too warm for a hat. I use “Buff” headbands to cover my ears, and the “half-Buff” scarfy things for a lightweight most-of-the-head covering if it’s particularly chilly. A different colleague down the hall who rides a bit more than twice as far as I do also uses these. (We both use them in warm and cool weather; they’re useful as sweatbands, too. And in a pinch, as a neck covering if I forget to sunscreen.)

Light blue square of fabric draped over barely visible narrow black bike seat. The fabric has white printing with an outline of the state of Minnesota, and the state seal in the center.
It doesn’t -have- to be a cool reference to your awesome state, but it probably helps.

Also wool socks & shirts, maybe? I wear mine from, like, mid-September through to mid-May or early June. This time of year is great for a wool long-sleeve shirt with a t-shirt over it in the morning, and then if things warm up, just the t-shirt on the way home! My longest-lasting wool socks are from Fox River. My most comfy wool shirts are from Smartwool, but they’re -spendy- (like, I only get those on -big- sale). I have several Terramar wool shirts that are much more affordable & holding up well, but theirs all seem to be blends now. I’ve also got one from LLBean that’s holding up well and was a bit more affordable.

Things to put on your bike

LIIIIIIIIGHTS. Always and forever lights. At the -very least, FFS, a headlight and a taillight-.

In summer, maybe you don’t end up riding in the dark that often (especially this far north.) But this time of year, it is getting dark a lot earlier!!! Also, it is rainy and/or grey-skied more often!! So YOU ARE HARDER TO SEE, regardless of how well -you- can see.

I was driving last night & saw a guy on a tallish recumbent around dusk, and he was just SO invisible. Didn’t see him until I was close enough that it’d’ve been dangerous if I’d been turning towards him.

Also reflectors. And maybe, since getting wet is way more of a problem in cold weather than in warm, a fender? Or the extremely high-tech solution I employ to reduce spray from my back wheel…

Bike rack viewed from the rear of the bike; it is sporting a decrepit cardboard cracker box held in place by a loose bungee net.
I don’t even think those were my crackers, I think I just grabbed this from office recycling.
Now I’m gonna go ride home, in the dark, in my gloves & scarf & WITH MY SEVERAL LIGHTS.

Owning your own work, and letting others share it!

Saw this tweet yesterday, and was intrigued.

To unpack from Twitter’s 140-character limit, author Martin Paul Eve is saying that the publisher Taylor & Francis (“T&F”) has requested that one of his articles, originally published in the Journal of Victorian Studies (“@JofVictCulture”), be removed from some online site. In particular, “takedown notice” implies that Taylor & Francis claimed that they owned the copyright in the article, and based their request for removal on that supposed copyright ownership. But, Eve says, the contract he signed with Taylor & Francis was non-exclusive (i.e., he didn’t give T&F exclusive ownership of any rights), and he retained copyright ownership! So, Taylor & Francis may well not be the owners of the copyright in this work!

In my experience, sometimes when authors request to not transfer their copyright to a publisher, the publisher provides an “alternative” form contract that grants an -exclusive- license to a wide variety of rights. The end result of signing such a contract is almost the same as transferring the copyright, because the publisher is the only one authorized to exercise those rights. I have specifically seen such a contract from Taylor & Francis in the past (though I do not know if this is a current practice.)

But Eve is very well-informed about these issues, so I didn’t think he’d be tripped up by even that subtle a move. I followed up with him for more detail (and to make sure he’d be okay with me writing a blog post about the incident), and indeed he -did- receive the “exclusive rights” alternative contract from T&F, but before signing & returning, he edited it to remove the word “exclusive”!

I do not claim great expertise in non-U.S. law (and both Eve & the journal are located in the UK), but my overall impression of the contract as signed is that it could be -clearer- about control of specific rights, but it is 100% clear that Taylor & Francis do not own the copyright, and not at all clear that T&F has any exclusive rights to the article.

Unfortunately, the host of the specific copy of the article had already taken down the article by the time Eve received notice of the takedown – whether they will put it back up, or not, is yet to be seen. Eve does have some other open copies elsewhere online, and the T&F original is still accessible, so his work is still readable. But this could have come out very differently.

Important takeaways for authors

1. You can 100% negotiate your publication contracts.

A lot of authors feel uncomfortable asking publishers to change publication contracts. But many publishers are quite willing to be flexible – and many publishers have policies that are more friendly to authors even without negotiation! Authors can look up publishers at SHERPA/RoMEO (and click through to the publisher’s actual policies) to select outlets that accommodate their preferences in baseline practices. There are also times when an author would be actively interested in publishing with an outlet that does not have such friendly baseline policies. In that case, it rarely hurts to ask for changes.

In my experience, authors sometimes worry that an article will be un-accepted if they ask for changes to a publication agreement. I’ve never heard of that happening, though I have heard of publishers who absolutely will not accommodate author requests on this point. (In that case, the author faces the choice of agreeing to the publisher’s terms, or not having their article published. Even then, the publisher is usually happy to accept the article when the author does decide to agree to their terms.) What authors may not always realize is that – especially when it has already been reviewed and found acceptable – the publisher needs your article! So many of them are willing to negotiate.

2. KEEP COPIES OF YOUR CONTRACTS, ESPECIALLY IF YOU NEGOTIATE SPECIFIC TERMS

Publishers have few incentives to keep careful track of which authors they signed non-standard contracts with. If you believe you retained rights in a work, but have no record of the specific terms of your agreement, the publisher (and other parties) will likely assume that you agreed to their standard agreement. In Eve’s case, depending on the attitude of site hosting the paper, he might be able to invalidate T&F’s takedown request. But that is entirely dependent on the fact that he has a record of what he -actually- submitted to T&F.

Important takeaway for hosts of author-deposited copies of academic papers

If you want to claim the safe harbors of the DMCA, you don’t have a lot of wiggle room in how you respond to a takedown request. Under U.S. law, someone who submits a DMCA takedown request must swear that they have a good faith belief in their claim of copyright ownership/infringement – but the host who wants to stay within DMCA policy will probably need to take that at face value.

However, for hosts that are not relying on the DMCA to begin with (i.e., most library/institutional repository hosts, and many disciplinary repository hosts), there is no need to follow the DMCA’s steps in response to a takedown request. (Also, not all “takedown requests” are DMCA takedown requests, but that’s an are for another blog post or three.) Since we know quite well that many academic authors, like Eve, are savvy enough to retain their rights, it is perfectly reasonable to respond to a takedown request from an academic publisher with a request that they provide evidence of their rights ownership. I know some academically-hosted repositories have done so in the past.

Important takeaway for academics in general

Academic publishers do have incentives to keep their originals accessible. But third party article hosting services that are not themselves either publishers or directly run by academic institutions or organizations have little incentive to fight to preserve access to any individual article on their site. When Elsevier sent takedown requests to Academia.edu, Academia.edu took down the articles – because that is the rational response of a for-profit company whose business plans are primarily oriented to monetizing the social graphs of academics. (Note that -many- of those takedown were about articles where Elsevier absolutely -did- own the copyrights.)

To preserve open versions of content originally published in closed venues, and to support authors who do the work of retaining their rights, there -must- continue to be copies hosted on servers -run by academics-; either institutions, or disciplinary organizations. These are the organizational actors that have serious incentives to do active advocacy in the service of long-term preservation and access.

Quality Control

This is not a post about copyright. It is, very indirectly, a post about how I talk about copyright. But the real point here is about how word choice (and to a lesser extent, choices to invoke some more general concepts) in public speaking can affect individuals in the audience. It is about how not using some words (even ones you may like using in other contexts) can affect how the overall message is received by the audience. Most importantly, it is about how omitting or taking care with some words and concepts can be a baseline act of respect for the individuals that make up an audience.

I do a lot of public speaking, and while I usually have an outline for the talk, most of the words that come out of my mouth are not scripted. Some large amount of what I say is not entirely under my conscious control. However, like most (I would like to say all, but this is sadly super not-true) public speakers, I avoid some words because they are generally considered socially unacceptable. This includes curse words (YMMV on whether cursing is socially acceptable, but few people would agree it falls within “polite” speech in most public contexts), racist and sexist slurs, and so on. This also doesn’t involve much conscious effort, because I am not a jerk .

However, over the years, I’ve started to make some conscious efforts in some other words I don’t say.

I’ll admit, the reason I first started editing my public speech was selfish. “Guys” is -very widely- used as a gender-neutral term for a multi-gender group. (I do still use it this way, usually accidentally, but I’ve managed to mostly remove it from my public speech.) But even though it’s -used- that way, the use of a masculine term as a universal descriptor is fundamentally pretty sexist. Unless you would equally casually use “gals” with a mixed-gender group, then you honestly do mean something a little bit gendered when you use “guys” the same way. That’s not what most people -mean-, that’s not what every woman or every non-binary or trans person experiences when they hear it, but it rubbed me the wrong way, and it’s use created some discomfort for a young person I was mentoring in a specific environment.

Over time, universal “guys” has also come to bother me for some other reasons. I’ve realized that my own gender identity is kind of tiny. (No, I don’t mean that I identify as the gender “tiny”; gender is just really peripheral to my self-image.) Having a gendered term used in an environment when gender is otherwise irrelevant has always thrown me off a little. Nothing major, no major personal distress. But having that experience of being minorly thrown out of the flow of a conversation/lecture/article/etc, helped me to understand more about how some words might be more disorienting, or have a much stronger negative impact, for others. So over time, my avoidance of the use of “guys” with multi-gender groups has evolved to generally avoiding gendered terms -at all- with groups of people, unless it’s the actual topic of discussion.

More recently, I’ve also started avoiding words that I was using that others have told me were problematic for people with disabilities (also called “ableist” language). “Lame” and “dumb” were easy to drop. “Crazy/insane”, “stupid” and “blind/deaf” (in the metaphorical sense) have been harder.

Most of these words are not commonly recognized as slurs, and pretty much all of them are accepted in everyday “polite” speech in the U.S.  I am not suggesting that they are inherently “bad” words. But I do think it would be a good idea if others tried to avoid them, too. Especially in professional spaces, and especially especially in learning spaces. Although many colleagues have totally been on board with my efforts to edit my public vocabulary, and have helped me to develop awareness of problematic terms, some others have been uncomfortable with the suggestion that this is something we all should consider.

One form that discomfort takes is to point out that these words don’t -actually mean- anything bad; there’s a colloquial usage that “everyone” understands. Particularly with “guys” it’s is 100% true that there’s a colloquial usage of the term that is intended as gender-neutral.

But in trying to treat other humans with respect, intent alone doesn’t get you very far. Avoiding ableist or needlessly gendered words is not about what -I- intend when I use them (and I do still slip up and use several of them sometimes. I’m trying.)  All of them are words that can be a distraction, and potentially upsetting or painful, for members of the audience. I confess there’s at least one word I mentioned that I still grapple with, feeling it has pretty valid usage in some situations; but if people in my audience experience it in a negative way, why should I -not- try to stop using it? There are tons of alternatives, the problematic terms are not necessary to convey my message, and removing them does no damage to anyone -else- in the audience.

Another pushback I’ve seen against the idea of limiting problematic vocabulary is that it will run to the extreme: that there will just be an ever-increasing list of things we can’t say or talk about for fear of bringing down the “PC Police”. I am a pretty big first-amendment fan, so I laugh a lot at people who use the phrase “PC Police” seriously. But on the other hand, um, maybe there will be an ever-increasing list? Is it -bad- that most of our society no longer considers it socially acceptable to tell racist jokes?

It’s true, once I started thinking about how my choices of words and metaphors might affect individual members of my audience, more than just my word choices changed. I am much less casual than I used to be about bringing up potentially fraught topics in general. One I still do invoke, but much more carefully, is pornography: it is often relevant to copyright topics, but is itself a really fraught topic, on a -number- of axes. I am more careful when bringing it up when it’s relevant and necessary, because I have a clearer understanding that some of my audience may find the mere mention a barrier to their own learning. (As they may here. Sorry if that’s you.)

I have also sometimes seen people push back against “PCism” by suggesting that replacing these words will sound ridiculous, or awkward. That it would make the speaker look silly. But I’m pretty sure that’s simply not true, if the speaker practices just a little bit.

One reason for that certainty is that I’ve seen fairly widespread scoffing that “folks” or “y’all” can be a reasonable replacements for “guys” in casual speech. People seem sure those will sound artificial. But I’ve been using those in workshops for years, and I have never received a single piece of audience feedback on it. I have -asked- people who’ve seen me speak multiple times if they’ve noticed I use those words, and most have not.

I’m -much- less smooth at substituting things in for “crazy” or “insane” – it -keeps- trying to pop up in my speech. I’ve slid towards things like “wacky” or “nuts”, but then, those have a lot of the same negative weight, and can be a similarly negative experience for other people. I try for “irrational”, “wild”, “disconnected”, “ridiculous”, “silly” or other more neutral words (that also often have the benefit of being closer to what I actually -mean-.) And yet, even though I sometimes still -physically pause- to find a better word than “nuts”, I don’t think any of my audience members have noticed.

I -do not want a cookie- or praise for these efforts. I’m writing about them in the hopes of encouraging other public speakers (or writers or trainers or etc) to consider doing some of the same. Or, for people who have already considered and chosen not to avoid words like these, to offer some additional perspective on the consequences of such a choice. I’m also writing to encourage people to let me know when I screw up: it was not comfortable to learn I was using words that bothered people, but in the long run, that discomfort has produced benefits for me and more importantly, for others. Please, discomfort me.

If you’re someone these problematic words don’t bother, great. When someone removes them from their public speech, you probably don’t even notice. But for the people who -are- bothered by any of these words, I hope their omission from public speech is -also- fairly invisible for you. Because you not having to think about this is -exactly why people should be omitting them in the first place-.

(With thanks for the thoughtful suggestions of two reviewers, Kathleen Lu and Jessica Schomberg; and no blame to them for anything I said that’s obnoxious.)

Copyright Report, Vol. 6 – lots of music action

General copyright news/info

Libraries/Higher Ed/Academic news/info

Techlaw news/info

Just Awesome

 

We’re Not The ©ops – Copyright, “Compliance” and Communications

A few weeks ago I led a session at the annual Enhancing Quality Staff conference, which is aimed at library staff members from around the Twin Cities who are not formally “librarians”. I’ve found the participants at this conference uniquely willing to engage in dialogue with me and with one another, so it’s a really special opportunity to try new approaches and cover new topics. This year, I presented a not-new topic in a new-ish format. Participants asked for slides, but those alone don’t cover the full breadth of the discussion – so here’s an attempt at that.

As always, I am a lawyer, but I’m not -your- lawyer, and this is not legal advice. Even more than usual, this is not legal advice. This is TOTALLY BIASED ADVOCACY.

text slide: institutional "compliance"
Institutional “compliance”

What does institutional “compliance” mean to you? In many institutional/organizational settings, a “compliance” officer is someone who is responsible for making sure the organization complies with all applicable rules, regulations, and policies. The idea of compliance is pretty closely tied to the idea of risk reduction; compliance officers try to make sure the organization doesn’t run the risk of violating any applicable rules.

Photo of a policewoman directing traffic in the rain, with police cars and a fire truck behind her
Traffic cop

For example, at the University of Minnesota, the Compliance Office tries to make sure people are following laws and regulations around food safety, research ethics, student finances, travel and procurement regulations… and copyright. But unlike some other areas of law and regulation, there are a lot of judgment calls and grey areas in copyright. On possible approach to risk management around copyright is to try to ensure library users never do anything remotely risky or unclear. But I advocate for a different approach.

Text slide: allowing users to exercise their own judgment
Allowing users to exercise their own judgment

“Really??? Just letting people -do- stuff? Isn’t that…”

Image of hands held under running water with text, 'abdicating responsibilities?'
Abdicating responsibilities?

Okay, so first, a basic legal principle:

Text slide: Basic principle of liability: independent actors are independently responsible for their independent actions
independent actors are independently responsible for their independent actions

We don’t try to make sure our library users are following the law in a lot of other areas: for example, most libraries tolerate (or even embrace) a wide variety of approaches to personal interactions among users in our spaces. Obviously, there are some times when law or ethics may compel you intervene in the actions of another – for example, most library staff members would intervene (or might even be legally compelled to intervene) if a parent or guardian became physically abusive with a child in one of our libraries. But much of the time, it’s a -bad- idea to try to control other people’s behavior. It can -create- liability where none would otherwise exist. For example: many libraries might have a policy that states that only certain staff members can or should intervene in a physical altercation between adults in the library – both for staff safety, and to limit organizational liability.

So, what am I saying about copyright, here?

Text slide: Let people make copies without getting permission or paying? ENCOURAGE THAT??
Let people make copies without getting permission or paying?
ENCOURAGE THAT???

That doesn’t just sound like staying out of a situation where a staff member might get hurt, or that might expose the organization to liability. That sounds…

photo of brownish tabby cat sneaking along the top of a fence or wall. Text: sneaky
sneaky

That sounds…

Photo of macaque monkey crouched to the side of a wall, peering over with one paw on the wall. Text: SHADY
SHADY

That sounds…

Close up photo of small child's face, the child is directing its eyes sideways, as if suspicious
downright unethical

Okay. You want to talk ethics?

“IV. We respect intellectual property rights and advocate balance between the interests of information users and rights holders.”
ALA Code of Ethics
http://www.ala.org/advocacy/proethics/codeofethics/codeethics

Is a teacher reading a book aloud to her class “respecting” copyright? What does it mean to “respect” copyrights?

Photo of teacher in a classroom holding a book up as she stands before her 4th-or-5th-grade-sized students at their desks
Teacher “respecting” copyright?

(At this point in the EQS session, we broke into small groups, to discuss the question. The following photo shows the wide variety of things people talked about in their small groups:)

photo of whiteboard, transcribed below
Respect (IP) brainstorming

The discussion was wide-ranging. Groups reported back that they had discussed:

  • whose rights are we respecting? Creators’, or publishers’?
  • citing sources
  • personal/individual use
  • sourcing things online
  • copying library CDs when you have spent $100s on tickets and artist merchandise
  • due diligence vs cutting losses (i.e., how much resources to devote to things like rights clearance, especially of materials where no final answer can ever be found?)

Obviously, a crew of deep, considerate, and critical thinkers. But let’s go back to the teacher reading to students example. Is she respecting copyrights if she reads to them without payment or permission?

“… the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction...”
17 USC § 110(1) – the Classroom Use Exemption

Or would she be DISrespecting copyright, if she paid or asked permission – since there’s an explicit provision in the law authorizing nonprofit in-class performance or display?

What about other exceptions that explicitly authorize certain kinds of uses? Is it “respecting” copyright to seek permission or pay to do things that are authorized by law? Lots of people don’t know about the provisions that explicitly authorize certain uses by religious groups, or at horticultural fairs. (17 USC § 110(3) and (6), respectively!)

Is it “respecting” copyright to try to get permission for use of public domain materials?

Line drawing of woman's head and shoulders, on old discolored paper
Da Vinci’s “Cleopatra” drawing

Is it “respecting” copyright to try to hide that something is in the public domain, in order to tell people they need to seek your permission, or pay you to use it?

And what about fair use? Fair use is a flexible area of law – but it can also be characterized as uncertain.

Jello mold on a plate, the bottom half is opaque and cream-colored, with embedded bits of other food; the top layer is clear green jello
Fair use: the jello of copyright law.

If we want to “respect” copyright law, can we do so by relying on that squiggly fair use? Courts have said that copying from unpublished memoirs in a newspaper was NOT fair use, but copying from unpublished letters and journal entries for a biography was fair use. Sampling a single note in a commercial recording was NOT fair use, but 2 Live Crew commercially releasing their own version of Roy Orbison’s “Pretty Woman” against the express wishes of the Orbison estate was fair use.

Well, however squiggly it is, fair use is part of copyright law. And the law says that fair use is “not an infringement of copyright.” There are also some other pieces of the ALA Code of Ethics that might be worth a visit, here.

VI. We do not advance private interests at the expense of library users, colleagues, or our employing institutions.”
ALA Code of Ethics
http://www.ala.org/advocacy/proethics/codeofethics/codeethics

Copyright law should not expand the rights of copyright holders without sufficiently considering or benefitting the public interest. When the balance between rights holders and information users needs to be restored, librarians should engage with rights holders and legislators and advocate on behalf of their users and user rights.”
Copyright: An Interpretation of the Code of Ethics
Adopted by ALA Council on July 1, 2014
http://www.ala.org/advocacy/proethics/copyright

If we decide that fair use is too squiggly for us to handle, are we putting a private interest ahead of that of our users? Are we abdicating our role as advocates for the public interest in copyright?

Respecting the law, and complying with it, may sometimes involve not seeking permission, not seeking to pay – and even, sometimes, pushing on where the “boundaries” of squiggly fair use are perceived to be. Respecting copyright by making use of the -exceptions- to the ownership rights it creates can produce great public benefit.

Family snapshots laid out across a computer keyboard, with a scanned image from another snapshot visible on the computer monitor
Digitization

The law already recognizes the public’s interest around copyright in a lot of ways (as in the exceptions outlined above.) There are also exceptions specifically for libraries, in 17 USC § 108. We can do a lot, if we stick to those!

But the provisions of section 108 are not the only copyright exceptions applicable to libraries, and we can do even more things, if we make use of all the public-interest provisions of the law.

Screenshot of the Hathi Trust Digital Library website, with caption Authors Guild v Hathi Trust
Authors Guild v. Hathi Trust

The Hathi Trust Digital Library (which involves many different partner organizations, but for which the University of Michigan bears primary organizational responsibility), took on a variety of projects to build on the books scanned via the Google Books project. Hathi has invested more in researching the public domain status of the works, done more to make them accessible to users with print disabilities, and done more to make them searchable and usable for researchers. They did all this knowing that others disagreed on whether their activities were fair use, and knowing they would likely have to go to court to defend their actions. But when they did go to court, the judges agreed with them.

I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants.”- AG v. Hathi District court opinion

Now we -all- know more about what kinds of uses are fair uses.

But aren’t ©OPS Good Sometimes?

I confess, when I first met people who wanted me to help them police and control their library users around copyright, I couldn’t understand it. Most of the folks asking for help along those lines didn’t seem like power-tripping control freaks. Eventually, I realized they really did have a deeply service-oriented goal.

Same image of policewoman directing traffic as above, with a text overlay - "I need to help people understand what they can and can't do."
“I need to help people understand what they can and can’t do.”

At least some of them were concerned with -preventing their users from getting into legal trouble-. On the other hand, some of them had a different orientation to communicating about copyright with users.

Photo of two hands holding up a andwritten sign that says "I am totally okay with you violating copyright by ripping our CDs & DVDs... and might show you how"
I am totally okay with you violating copyright by ripping our CDs & DVDs… and might show you how http://librarian-shaming.tumblr.com/post/63012809025

This attitude also bugs me a little – not just the encouragement to break the law – but much more so, the absolute failure to recognize that library users may be legally allowed to do these things. This person actually has the same misunderstanding of copyright as those who want to tell users “No” a million times, just a different follow-on action. Whereas I can think of a close-to-infinite list of at least plausibly fair uses: ripping in service of a use covered by the Classroom Use Exemption; ripping to make a mashup song; ripping to make a remix video; ripping for computational analysis…

But these ideas that copyright has a clear right-and-wrong are pretty sticky. A lot of people feel that even legally permitted copying is a little bit “wrong” most of the time. And just learning more about copyright doesn’t always shift those beliefs. The way that organizations often communicate about copyright to their constituents may reinforce that feeling that copying is a “wrong” action.

Notice from an Office Depot copier: COPYRIGHT INFRINGEMENT is Punishable by Fine and Imprisonment (and much more very small print)
Office Depot copier warning

What might a library communication that’s not aimed at “compliance” – that admits that “compliance” is a fraught question in relation to a law that both outlines rights for owners -and- exceptions to all of those rights – look like?

Public sign that says: the law requires that we tell you this (outlines copyright rights of owners); the law does not require that we tell you this (outlines rights of users) Learn More - Know Your Copyrights
Copyright information from the University of Michigan

An underlying consideration that I think is essential to considering how much effort libraries should expend towards “compliance” with copyright laws: users who have their own homes to go to, with their own technologies to play around with, and their own internet connections to send and receive through, get to make their own decisions about how they use any materials they check out of our libraries. We can help them to make informed choices about their actions through outreach and education programs, but ultimately, placing “compliance”-oriented limits on what can be done in the library, is just limiting in-library users.

Or, in an alternate view, is…

text slide: differentially censoring individuals without independent technology access
differentially censoring individuals without independent technology access

This kid was always going to be able to make his own cover-song videos and post them online, and reap the benefits of that, because he and his mom had the necessary tools & technologies at home.

still of a video of Justin Bieber, about age 11, playing an acoustic guitar
A Very Young Justin Bieber

But do you want your library to be the place that told these kids they couldn’t make an original song and video about their favorite snack foods, and reap the benefits of -their- subsequent popularity, because trademark law might not permit it?


Slide Image Credits
Policewoman: Talk to the hand CC by-nc-nd Tom Fassbender
Hands in water: Washing hands CC BY-NC-ND SCA Svenska Cellulosa Aktiebolaget
Cat: Sneaking cat CC BY Hans Pama
Macaque: Sneaky beggar CC by-nd Kevin Botto
Shady toddler: Sneaky Eyes CC by-nd Big D2112
Teacher: Reading Aloud to Children CC by-nc-sa Judy Baxter/OldShoeWoman
Jello: Under the Sea Jell-O Mold CC by Carol at puresugar.net
Office Depot copier warning photo: Office Despot copyright warning CC by-sa Cory Doctorow
Digitization: Working on old photos CC by-nc-nd Vermegrigio



Copyright Report, Vol. 5

Googacle (Oracle America, Inc. v. Google, Inc.)
This long-running case has previously touched on issues of copyrightability of APIs, on 5/25, a jury found that Google’s use of them was fair use.

Star Trek fan film (Axanar)

Academic/Higher-ed news/info

General copyright news/info

Techlaw news/info

Just Awesome


  • RT @Lin_Manuel: “…and no one shall make them afraid.
    They’ll be safe in this nation we’ve made.”
    An honor to sing for you tonight.
    (Gabrielle Giffords & astronaut husband Scott Kelly at Hamilton
  • PLos crow video

    Open science research video: a crow that understands fluid volume. (Gets good after 1:02) Yay @PLOS!

Does [X] ‘count’ as published?

To a copyright lawyer, this question sounds like it’s probably about one of two things: was some work ‘published’ for the purposes of fair use analysis, or was the work ‘published’ for the purposes of public domain status determination. (It is often more likely to be fair use to copy from published material, and there are TONS of different ways in which the act of publication (and its date, if it occurred) affect the public domain status of a work. Go look at Peter Hirtle’s magic headache chart, if you’re curious about that.)

BUT, copyright-y type people, THAT IS NOT USUALLY WHAT ACADEMICS ARE ASKING ABOUT WHEN THEY ASK THIS OR SIMILAR QUESTIONS! (Learn from my prior confusions!)

engraving/drawing of of students using printing press in the late 1800s
Does my student newspaper article
count as “published”?
(Image from 1869 “Catalog of the Hampton Normal and Agricultural Institute)

Students and recent graduates often ask things like, “Does my thesis count as published?” Other authors of academic content may ask similar questions such as whether a blog post or pre-print ‘counts as published’. The issue underlying these questions is that many academic journals (and most publishers of other academic content) have a policy of only accepting work that has not been previously published. Many journals also require that authors not submit their work for possible publication at more than one publication simultaneously. There is a premium placed on “newness” and “originality” of publications in academia.

I was aware of this as a general consideration in academic publishing when I first started in my current position, so I wasn’t surprised that authors had “does this count as published?” questions that were not really copyright-related at all. But I -was- surprised when I first encountered a journal editor who asked -me-, “Now, what are the rules about what’s not eligible because it’s been published?” Turns out a lot of academics think ‘what counts as published’ is a universal and externally-applied rule. Fact is, it’s an internally-created rule, has almost nothing to do with copyright, and even publications that phrase their “originality” requirements the same way may have different interpretations of what ‘counts’ as published in such a way as to disqualify it for submission to the journal.

Most journals and/or publishers, however, do have a public webpage with some information about what they consider as disqualifying prior publications. Authors may not realize they can look there, but it often answers the question readily.

Submission of an article implies that the work described has not been published previously (except in the form of an abstract or as part of a published lecture or academic thesis or as an electronic preprint, see ‘Multiple, redundant or concurrent publication’ section of our ethics policy for more information), that it is not under consideration for publication elsewhere, that its publication is approved by all authors and tacitly or explicitly by the responsible authorities where the work was carried out, and that, if accepted, it will not be published elsewhere in the same form…”
Example of publisher information, from the journal “Biology of Blood and Marrow Transplantation

Sometimes, the publisher site will refer to a disciplinary standard on the issue – and it is quite interesting to note that there are variations on the issue between disciplines! Some consider a conference paper disqualifying, and some don’t! The standards are evolving actively right now in many disciplines, as they consider how they want to handle “pre-print” servers (physics and CS has had arXiv for forever, but many other disciplines are only starting to explore this kind of research distribution.)

Important to note: Many journals/publishers do not consider thesis or dissertation ‘publication’ to disqualify a work for submission! Sometimes that’s explicitly stated in their author information (as above.) Sometimes it’s not in their author information, but they still don’t think it’s disqualified! So if an author is concerned a student work may be disqualified because of ‘publication’, and the public information doesn’t address that, it’s never a bad idea to ask an editor or other publication staff.

In general, if an author is not sure if their work ‘counts’ as published in such a way as to disqualify it for submission to another academic publication, it doesn’t usually hurt to ask!

Graffiti that says, in French, "Initially, I had an idea for my first tag... sorry"
Does graffiti count as “published”?
Image “Pardon” CC BY Môsieur J. [version 9.1]

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