Panel 3: The Challenge of Copyright
by doug | April 4, 2009 | workshops and symposia | Comments Off
Back from lunch, Lea Shaver introduced the third panel, which included Laura Gasaway, Jonathan Band, Denise Troll Covey and Kenneth Crews. The topic: copyright challenges in the era of the Library 2.0…
Lea Shaver
This panel is entitled “The Challenge of Copyright,” but as the five of us put heads together, we realized that this title was all wrong. In the era of the Library 2.0, it’s only possible to speak of the challenges of copyright, in the plural.
These speakers will address copyright challenges that are ethical, legal and logistical; challenges of permissions, privileges and prerogatives; challenges past, present and future.
Lolly Gasaway and Lea Shaver at the Library 2.0 Symposium
Lolly Gasaway
Laura Gasaway, Associate Dean for Academic Affairs and Professor of Law, University of North Carolina School of Law, kicked off the panel…
My job is to set the stage for our discussion, so I’m going to look historically at two different time periods: the 1909 Copyright Act and the 1976 Act, through the lenses of librarians and university faculty.
1909 Copyright Act: In 1908, a case introduced the first sale doctrine. The big issue in 1909 was the importation of foreign printed works. The U.S. had imposed a tariff, to protect the nascent domestic printing industry. There was an exception to the tariff for libraries. Turns out that the photostat machine was developed soon after 1909. In 1935, there was a “gentleman’s agreement” on fair-use copying by libraries. There were disputes between faculty and their libraries over the copyright ownership of their works.
1976 Copyright Act: For the first time, libraries were explicitly included in the Act (thanks to the photocopier). Librarians were becoming very knowledgeable about copyright. Statute recognized that libraries could reproduce direct copies for users, and indirect copies via interlibrary loan. Faculty were handing out photocopied materials to students; guidelines were promulgated for fair use. Statute also addressed fair use in classroom performances and displays of video and audio.
Today: DMCA facilitated digital replacement and preservation. In 2005, the Copyright Office and INDIP (?) created a Section 108 study group; if its recommendations are adopted, there would be storage of web pages. Faculty are now using electronic coursepacks, course management software, etc. More universities are adopting copyright policies to resolve ownership disputes. Many faculty are considering Open Access.
Is the first sale doctrine available for digital works? The Register of Copyrights says no. Publishers are challenging universities and their libraries (see Georgia State University litigation).
Jonathan Band
Jonathan Band at the Library 2.0 Symposium
Jonathan Band, Technology and Law Consultant; Author, spoke next about the state of fair use today.
Courts are applying fair use more broadly than ever before.
Libraries and educational institutions should apply fair use aggressively.
17 USC 107 sets forth the fair use doctrine, with the four factors that courts are supposed to consider.
Blanch v. Koons (2d Cir.): Jeff Koons’ painting Niagara included fashion photographs, including legs in silk stockings. The photographer sued for infringement; Koons argued fair use, and prevailed. Note that his use was definitely commercial (he gets paid plenty of money for his paintings).
Perfect 10 v. Google (9th Cir.): Perfect 10 was an adult website; its images were copied on various third-party websites; these thumbnail images appeared on Google Image Search. Google claimed fair use, and prevailed.
Bill Graham Archives v. Dorling Kindersley (2d Cir.): Bill Graham Archives owns Grateful Dead concert posters. Defendant publisher wanted to put together a coffee table book on the Grateful Dead, including a timeline with thumbnail images of the posters. Some of the posters were licensed; some weren’t. Publisher claimed fair use, and prevailed.
Google Book Search: This would have been the fair use case to end all fair use cases – a class action case involving millions and millions of books. But it’s been settled (which we’ll talk about later).
Harry Potter Lexicon case: Reads as a very pro-fair use decision, even though the defendant lost. Under the facts of this particular case, the lexicon crossed the line.
Note that there is state sovereign immunity for public institutions (including state university libraries) — no [actual] damages.
Also, there’s remission of statutory damages for libraries and educational institutions if they’re acting in good faith under a belief of fair use.
Bottom line…
In those circuit cases above, which found commercial uses as fair uses, you’d think that noncommercial uses would be all the more likely to be held as fair use.
Also in these cases, the amount used and the impact on licensing markets were not considered relevant; what was key was the transformative nature of the use.
This suggests that we can use fair use very aggressively — and we can rely on it more than on legislative reform.
And if fair use hinges on transformation/repurposing, then do educational e-reserves qualify?
There still might be serious litigation costs. Do we need a fair use legal defense fund? We already have EFF, the Fair Use Project at Stanford, and various legal clinics. But the library community should think about this.
=== Q&A ===
Q: Address the Georgia State case attempt to redefine and constrain fair use.
Covey: Looking at to a large extent publisher had been receiving royalties for course packets, but with the rise of digital copies, did not receive them anymore at the same level.
Band: Publishers were sending cease and desist letters. Fact on their surface (alleged) seem to favor the publisher. First of all, the policy that Georgia was operating under (20% can be used of a book = fair use). Several instances of 5-6 chapters being electronic copied. No technological protection on any of this either. Anyone in the world could access it. If these facts are true, that may be beyond fair use.
Denise Troll Covey
Denise Troll Covey at the Library 2.0 Symposium
Denise Troll Covey, Principal Librarian for Special Projects, Carnegie Mellon University Libraries, spoke third. ..
There is a conflict between how academics and publishers view the distribution of academic works.
Covey argues that academics view their works as cognitive property, that cannot be owned, and is distributed in a gift economy, where ideas are distributed through shared interested and good will. The law only described intellectual property, which can be owned, and is distributed in a market economy, where property is bought and sold.
This dispute is moral one, because each framework implies opposing views of where the value of the work lies. Intellectual property finds value in its potential for economic gain, whereas cognitive property’s value is in creator recognition and reward.
Covey describes the ethic of the academic as “hybrid.” She wants control over her work, which can be attained through considering their work as intellectual property. However, she also subscribes to norms of honor and propriety that are more germane to ideas about cognitive property. These two components are in tension in the status quo.
Open access is the gift economy in market space. It addresses the dual needs of the hybrid ethic.
Covey’s study shows that online PDF archives of works tend to breach publisher policy at a high proportion of universities, especially in the social sciences. The actions of academics do not follow the guidelines set by publishers.
She goes on to examine our ethical intuitions on this matter. The gift-giving concept’s intuitiveness is illustrated in how stakeholders view infringement of copyright in this area. The public is not shocked and faculty do not see this as a breach of norms. Publishers care, but only in a “political sense”; they want to maintain control of the paid distribution structure that yields them profits. The conclusion that she draws is that copyright infringement in this area may be illegal, but it is not unethical.
This fundamental ethical difference has lead to a “border skirmish” between academics and publishers. In archiving works online, faculty operates from a gift economy. Libraries are, in effect, the border in this conflict.
Covey argues that realizing that the impulse to share academic works comes from an ethical moral framework core to how academics operate. The call to preserve this could inspire civil disobedience and moral courage among librarians and academics.
Kenneth Crews
Kenny Crews at the Library 2.0 Symposium
Kenneth Crews, Director of Copyright Advisory Office, Columbia University, spoke last on The Fragmentation of Law and the Future of Libraries. A reckless look at the future…and it’s going to take you a long time to prove me wrong!
Copyright is not actually a unified whole—it’s fractured and splintered, increasingly so.
For decades, we’ve been moving in the direction of stronger and broader rights. Thus the collision course we’re on today. The concept of “balance” is an illusory cliché; it’s time to take a position!
Inevitably, copyright is moving in an international direction, much more powerfully.
We’re seeing a helpless abandonment of copyright principles (e.g. to user-generated content)—yet the law still applies.
There’s a failure of enforceability, because the cost of enforcement is prohibitive; criminal prosecution is very rare. And even if you can effectively sue someone, the remedies aren’t very effective or worthwhile.
So we see private responses: growth of collective licensing (e.g. ASCAP), technological protection systems, settlements of class action suits.
We’re seeing a structural reworking of the environment of copyright law: Creative Commons, the Open Access movement, and the Google Book settlement. It’s like somebody stepping in and saying, “Here’s a chance to rework the rules.”
Creative Commons is a tempering of copyright, limiting rights and/or clarifying author’s interests (e.g. to demand attribution, which the law does not require).
Open Access is an assertion of copyright in order to limit copyright: “I own copyright, and I want to grant open access.”
Google Books settlement: Fragmenting of “books”; the settlement only applies to books published before January 2009, and only U.S. books. Moreover, the books are being dismantled—only portions of books will be delivered, with images excised. Alternative sources will still be possible; we’ll start shopping for the best source. Note that we’re only talking about books—not journals, images, music, art, etc.
Fragmentation of authors (choosing which rights to assert or transfer), fragmentation of works (with or without restrictions), fragmentation of readers (connected or not), fragmentation of publishers (different media), fragmentation of libraries (diversity of terms).
Major blurring of the line between publishers and everyone else…we’ll all take on each others’ characteristics.
And we will become the apologists for the chaos that lies ahead…
=== Q&A ===
Q: How is “alignment” different from “compliance,” from the perspective of an angry rightsholder?
Covey: “Compliance” means following 100% of all the picayune rules specified by the publishers. “Alignment” means an informed choice, based on what risk you’re willing to take. For example, if the publisher allows self-archiving, and choosing which specific policies you’re going to follow (versus which you’ll dispense with). This respects the publisher’s choice about whether or not to allow open access, while minimizing harm to ourselves; we’re saying we have thought about this, and we’re standing behind what we’ve done. If we get a takedown notice, we’ll take it down…
Q: Consider the idea of a social contract, as a fair bargain between parties with different interests…
Band: Faculty really really need to pay a lot more attention to this than they have been. My dad is a professor of comparative literature, and comes to me with copyright questions; he’s annoyed that he signed rights away years ago. There’s a famous Israeli poet whose letters are here, but the copyright belongs to the widow. My dad can’t understand why a researcher can’t reproduce the letters, when Yale owns the copy (but not the copyright).
Shaver: looking at the twitter hash, the single item most picked up from this talk was Denise’s line about the need for libraries to engage in civil disobedience and moral courage. Apparently that struck a chord.
[Applause from the audience.]
Band: But under a liberal conception of fair use, it’s not civil disobedience; it’s compliance with the law!
Q: Show of hands from the audience — whose institution has actually been sued, or threatened with litigation?
[A scattering of hands go up in an audience of hundreds]
Q: Is there something comparable to “greenwashing” going on with publishers? There’s a humanities and social science publisher that allows authors to maintain copyright ownership…but this means nothing in practice, given the assignment of all relevant rights to the publisher. “Open access” ends up meaning that you have to buy back your own work for $4,000 just to make the PDF freely available.
Q: In whose hands does the future of copyright lie?
Gasaway: It’s in the publishers’ hands. Cambridge and Oxford are practically commercial presses. Publishers will continue to drive this…all we can do is argue with them real good.
Crews: It’s in the hands of the authors; that’s the structure of the law. If I’m the author, I hold all the rights, until I give them away. The author needs to make some decisions. I understand that there are pressures of tenure and publication…but you need to work for change from the inside.
Band: The author piece is a generational issue; younger people have a much greater awareness of the issues. So much is driven by the tenure decision, and junior faculty wanting to publish with certain exalted publishers. So we need top-down action from university presidents, etc.; junior faculty needs to get equal credit for open-access publications.
Covey: The future lies in the hands of today’s students: they are becoming accustomed to open access; it’s what they’re going to expect.
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