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“Fly the W” for Fair Use

Baseball season officially ended this week with the conclusion of the World Series, and Cubs fans are still basking in the fading glow of what almost was. This season, the the “W” flew more often than not for the Chicago Cubs — the “W” referring to the flag flown at Wrigley Field whenever the Cubs scored a win. Well, this season, fair use “flew the W” in a few significant cases that I would like to take a moment to highlight.

Katz. v. Chevaldina
In this rather bizarre case, Florida real estate mogul and NBA team ownwer Raanan Katz filed a copyright infringement action against a former shopping center tenant who used a photo of Katz in a blog post she wrote criticizing Katz for his business practices. The photo (the copyright of which was transferred to Katz by the original photographer) is an up-close photo of Katz with his  eyebrows raised and his tongue sticking out. Chevaldina was granted summary judgment at trial on the issue of fair use. Katz appealed, and the court affirmed. The court agreed that Chevaldina’s use of the photo on her blog constituted fair use.

In analyzing the first factor of fair use, the court found that the inclusion of the photo on the blog was a transformative use because the photo, which had been characterized as unflattering, ugly, and compromising. She used the photo for the noncommercial purpose of satire and criticism, as allowed under the fair use statute, and to warn others about Katz’s documented business practices. Further, the photo, which had been previously published, was primarily factual in nature (factor two) and was more a fortuitous shot than a work of creativity.  As to factor three, the amount of the work used, the court concluded that this factor was neutral with respect to fair use analysis. Finally, the court found no harm to any potential market (factor four) for the photo as the only purported reason for estopping use of the photo was censorship.

Lenz v. Universal Music
Popularly known as the “Dancing Baby” case, Lenz v. Universal Studios concluded this summer with another win for fair use. In this case, Lenz had posted a very short video on YouTube documenting her toddler’s adorable dance moves. During the less than 30 second grainy video clip, the sounds of Prince’s “Let’s Go Crazy” can be heard in the background. Universal Music issued a take down notice pursuant to the DMCA, and Lenz filed suit against Universal contending that it should have considered fair use before availing itself of the DMCA procedure. On appeal from a trial court judgment dismissing the parties’ cross-motions for summary judgment, the Ninth Circuit Court of Appeals ruled not only that fair use is a legal right and not an affirmative defense, but also that copyright holders must consider fair use before issuing DMCA take down notices. Now, Universal must prove at trial that it did in fact consider fair use before issuing its take down notice

Author’s Guild v. Google
In perhaps fair use’s biggest win of the season, the Second Circuit Court of Appeals ruled in this decade long lawsuit that Google’s book scanning project is fair use. Judge Leval, author of not only the court’s opinion but also of a seminal scholarly work on “transformative” fair use, concluded that Google’s scanning of books held in the collections of its library partners and displaying of snippets of those books online for the purpose of allowing searchers to identify relevant works was a transformative use. Leval summarized the court’s opinion as such:

Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copyright is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.

I will refrain from recounting the court’s full analysis of the four factors of fair use here. Several authors have already done a superb job of summarizing Leval’s fantastic opinion, which overwhelmingly stresses the purpose of copyright as benefiting the public and the importance of transformative uses of copyrighted works to realizing those benefits. I direct you to the following for thorough and accessible recaps of the opinion:

Techdirt – “Appeals Court Gives Google a Clear and Total Fair Use Win on Book Scanning
EFF – “Big Win for Fair Use in Google Books Lawsuit
ARL – “Issue Brief: Second Circuit Court of Appeals Affirms Fair Use in Google Books Case

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The State of Public Access in the United States

Today, I’m going to provide a brief update on federal initiatives targeted toward making federally funded research articles and data publicly accessible.

There have been four primary federal actions in the last 12-18 months addressing public access to federally funded research.

The Fair Access to Science and Technology Research Act was introduced in both the House and the Senate in February 2013. FASTR is the successor to the Federal Research Public Access Act or FRPAA, which had been introduced in Congress in 2006, 2009 and 2012 but never came up for a vote.  Like FRPAA, FASTR applies to federal agencies who spend at least $100 million on extramural research, so it applies to agencies such as the Departments of Agriculture, Education and Transportation as well as the EPA and the National Science Foundation.  Also similarly, FASTR requires deposit of the final version of an author’s peer reviewed manuscript in an open access repository no later than 6 months after publication. Works by government employed researchers are to be available open access immediately. FASTR does include a few provisions that did not occur in the prior versions of FRPAA. First, FASTR contains a provision on coordinating agency policies. This requirement of coordination will serve to reduce the burden on universities that need to comply with procedures at more than one of the covered agencies. FASTR also includes a licensing and formatting provision to ensure that research results are machine readable and subject to computational analysis. Finally, FASTR requires agencies to include in annual reports a statement on whether the terms of use applicable to the deposited papers has been effective in enabling reuse and computational analysis.

A week after the introduction of FASTR, the White House Office of Science and Technology Policy issued a directive requiring agencies with over $100 million dollars in extramural research expenditures to make articles AND data publicly available no later than 12 months after publication.

Then, 11 months later, the government essentially codified into law the directive of the OSTP memo for the agencies of the Departments of Labor, Health & Human Services and Education by requiring them through the 2014 spending bill to make research articles funded by those agencies publicly accessible within 12 months after publication.

Finally, in March of this year, a bill was introduced in the House entitled the Frontiers in Innovation, Research Science and Technology Act or FIRST and in section 303 of that bill public access to federally funded research articles is required no more than 24 months after publication, with agencies also being granted the option by policy to extend that embargo by an additional 12 months. The language of the act also mentions access to data within 60 days of the accompanying article’s publication but does not specify the mechanisms or parameters for accessibility or use of the data.

So what is the current status of these initiatives – and what steps are outlined therein for their implementation if passed or approved.

FASTR was referred to committees in the House and Senate shortly after it was introduced. There hasn’t been any other Congressional activity on the bills since their referral. However, there has been a large outpouring of public support for the bill. Various library, publishing and public interest organizations have signed onto a joint open letter to Congress supporting the bill and this fall the provosts and presidents from 65 different institutions also issued an open letter to Congress in support of FASTR.

By the terms of the OSTP memo, agencies had to submit their implementation plans by August 2013 and those plans were to be implemented by February 2014. Despite a request from SPARC and other interested parties, the details of those plans have not been made public. The latest information is that the plans are currently undergoing revision in response to feedback received from OSTP and OMB.

Meanwhile, two groups have undertaken development of systems to assist with implementation of the OSTP directive.

ARL, APLU and AAU released their plans for the Shared Access Research Ecosystem last summer, however, development of those plans has been a tad slow. The most recent news from SHARE is the development of a Notification Service which will alert interested parties such as universities and funders, of the release of research output from their faculty, researchers and grant recipients. A beta release of this notification system is scheduled for this fall and the full release for fall 2015. Additional planned components of SHARE include a registry for articles and data, a discovery tool for users to locate funded research across repositories, and a content aggregation system to facilitate data and text mining.

Publishers have also coordinated to create a system called CHORUS or the Clearinghouse for the Open Research of the United States. A pilot database of funded articles was released fall and to date over 100 publishers have signed on to participate. The Departments of Energy and Agriculture and the National Science Foundation are also participating in a pilot of a dashboard whereby interested persons can search an individual agency for funded papers.

As for the spending bill – it was signed by the President, and what this amounts to is a codification of the OSTP memo for those agencies specifically named in the bill. We should see plans or policies emerging from these agencies soon with respect to how they plan to make funded research available. It will be interesting to see if they adopt policies similar to NIH or if they avail themselves of the options currently being developed in the wake of the OSTP memo.

Finally, opposition to FIRST has been ramping up while we await markup of the bill from the House Committee on Science, Space and Technology. Several institutions, including SPARC, EFF, Public Library of Science, and Creative Commons, have signed on to joint letters sent to the committee opposing FIRST.

So, while we await the outcomes of these various federal bills and directives, what can we as libraries, researchers, educators and citizens do?

First and foremost it is important to stay informed, not only of the status of these bills but also of implementation plans. I would also recommend that you contact your local legislators. SPARC has provided wonderful letter templates and talking points that can be utilized by library deans and directors or by a university’s government relations office. You may also want to encourage the heads of your institutions to sign on to the advocacy letters drafted by SPARC and other organizations. Communication is key going forward so stay in contact with campus offices that are involved with research activities and funding, with faculty, with your colleagues at other libraries and even with publishers. We are all stakeholders in these endeavors and open lines of communication and cooperation will be key to the success of whatever plans are adopted by the agencies affected.

Finally, if you work in a library or at a university, start laying the groundwork of how your office or staff will be involved in compliance efforts. What staff members may be involved in implementation, how can existing resources, such as repositories, be leveraged, etc.

Here are some resources you may find helpful:

—FASTR

—OSTP Memo

—FIRST

Better than FASTR?

On February 14, 2013, the Fair Access to Science and Technology Research Act (FASTR) was introduced in both houses of Congress. A successor to the once again defunct Federal Research Public Access Act (FRPAA), FASTR covers the same agencies as the former proposed legislation and similarly mandates public access within 6 months of publication, through unspecified open access repositories, to the final versions of peer reviewed manuscripts that report results of certain federally funded research. FASTR differs from FRPAA in its inclusion of a provision for covered agencies to coordinate the policies they develop in response to the legislation and inclusion of provisions requiring open licensing of research so that it may be reused under certain conditions.

The introduction of FASTR, particularly its open licensing provisions, immediately drew praise from open access supporters, including library and public interest organizations, and scorn from publishers. Association of College and Research Libraries President Steven Bell stated in that organization’s letter of support: “I am particularly pleased that this legislation addresses both greater access to research and greater reuse through open licensing. As scholars undertake new research, it is crucial to build on the works of others who came before. Open licensing is an important step towards a more open system of scholarship as it facilitates subsequent reshaping into new scholarship.” On the other side, the Association of American Publishers (AAP) called the new bill a “boondoggle.” AAP Vice President Allan Adler complained: “This bill would waste so much taxpayers’ money at a time of budgetary crisis, squander federal employees’ time with busywork and require the creation and maintenance of otherwise-unneeded technology all the while ignoring the fact that its demands are already being performed successfully by the private sector.”

While the press and others were still spinning support and criticism of FASTR, the Obama administration through the White House Office of Science and Technology Policy (OSTP) released a public access directive on February 22, 2013 that commands Federal agencies with over $100 million in annual research expenditures to “develop a plan to support increased public access to the results of research funded by the Federal Government…[including] any results published in peer-reveiwed scholarly publications that are based on research that directly arises from Federal funds.” Similar to FASTR, the directive encourages agencies to work collaboratively in the development of public access plans. The directive, drafted in response to a 65,000 signature petition calling for action and to comments filed in response to 2011 OSTP Request for Information, specifies the features these plans must incorporate, including strategies to foster public discovery and access of scholarly research and to either utilize existing archives and repositories or develop new partnerships for creation of modes of open and public access. Unlike FASTR and its predecessor bills, the directive calls for a 12 month (rather than a six month) embargo. Drafts of these plans are to be submitted by covered agencies to the OSTP within six months for its issuance.

As expected, the OSTP directive garnered immediate praise from open access advocates. Surprisingly, however, the AAP also came out in support of the directive, leaving one to wonder if perhaps a better alternative to FASTR had been born. One way the OSTP directive improves upon FASTR is in its stroking of publishers’ egos by recognizing the services they provide and by seemingly recognizing their interests as stakeholders. As the AAP response praises: “As one of its core principles, the policy ‘recognizes that publishers provide valuable services…that are essential for ensuring the high quality and integrity of many scholarly publications. It is critical that these services continue to be made available.'” The incorporation of the 12 month embargo similarly makes the OSTP directive more palatable to publishers. The writers at the blog Scholarly Kitchen, which frequently directs criticism at open access endeavors, specifically called out the 12 month embargo and the ability for agencies to petition for an extended embargo period if data was presented to support the request. Embargo periods, as the blog points out, are often established without much rationale or evidence (and are frequently the subject of debate among open access advocates and opponents alike). The provision for establishment of an embargo period supported by data may very well be a positive step.

Aside from seemingly making publishers happy, there may be other reasons to position the OSTP directive as superior to FASTR, or at least as a necessary complement or supplement to the as of yet enacted legislation. The FASTR bill only covers public access to scholarly publishing; the OSTP directive covers both publications and data. This recognition of the importance of access to research data is certainly an improvement and a recognition of changes in policy already taking place at some federal agencies, including the National Science Foundation. Another improvement of the OSTP directive over FASTR is by its definition it applies to more agencies than FASTR.  This larger umbrella includes agencies such as the Smithsonian Institution, which are excluded from FASTR. A final positive of the OSTP directive is its effective date: immediately. Agencies are under an immediate mandate to start crafting policies and publishers are put on notice that they must be open to working with agencies to carry out the objectives of the directive. Rather than spending energies lobbying for or against proposed legislation, these groups can direct their attentions to doing real work that will culminate in real results. Granted, the directive could easily be stricken in four years with a new administration; whereas legislation takes an act of Congress or the U.S. Supreme Court to be nullified. However, the force and effect of an executive order to move forward rather than continuing to spin wheels is certainly a better and perhaps truly “faster” means to an end than the FASTR bill.

Transformative Use of Video Gets Another Win with DMCA Rulemaking

The Librarian of Congress has just released the most recent round of exemptions to the anti-circumvention provision of the Digital Millennium Copyright Act. During prior rulemaking rounds, the Librarian has carved out exceptions for the use of clips from DVDs for educational purposes, initially by film studies professors only but then expanded to faculty from any discipline.  In this most recent round of rulemaking, the Librarian has recognized an exemption “where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators.” The Librarian clarified, however, that the exemptions do not apply to the use of motion picture excerpts in fictional films, as the Register of Copyrights was unable to conclude that such use is noninfringing. In the Notice, the Librarian explains:

[The Register of Copyright] noted that such uses fall within the favored purposes referenced in the preamble of Section 107 and, especially in light of the brevity of the excerpts used, are likely to be fair uses. More specifically, the Register determined that the proposed uses tended to be transformative in nature, employing short clips for purposes of criticism, comment, teaching, and/or scholarship, rather than for the works’ originally intended purpose. Despite thecommercial aspect of uses by documentary filmmakers and multimedia ebook authors, the Register noted that when a short excerpt of a motion picture is used for purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard. While the Register did not conclude that a court would find each and every one of proponents’ examples to be transformative, she did find that
the record amply supported the conclusion that a substantial number of the proffered examples likely would be considered transformative fair uses.

The Librarian further noted that the Register found no merit to opponents contention that licensing or screen capture technology should be utilized to accomplish the desired uses. Requiring licensing for the use of clips for the stated purposes would be contrary to judicial precedence of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) that such transformative uses were fair uses of copyrighted works.

Across the Border and Across the Pond

Important copyright and open access news has come out of Canada and the UK in the past several days:

Supreme Court of Canada Issues Several Copyright Rulings
On July 12th, the Supreme Court of Canada issued its rulings in five separate copyright cases.  Four of the five cases concerned music royalties and the fifth case concerned the charge of royalties for photocopying short excerpts of works for use in education. (The controversy over assessment of this tariff was previously discussed on this blog.) In sum, the Court’s rulings established a broader reading of “fair dealing” — a phrase nearly equivalent to “fair use” under U.S. copyright law. Specifically, the Court held that photocopying textbooks for or by students for private study, even if in the context of instruction, or research is fair dealing, thereby dismantling the expensive licensing scheme put into place by Canada’s version of the CCC, Access Copyright. Duke University Scholarly Communications Officer Kevin Smith made a nice analogy of the Canadian Court’s ruling to the recent decision in the Georgia State University e-reserves case.  He writes:

Another important part of these decision about instructional copying is that [Supreme Court of Canada] Justice Abella found little or no harm to the market for published work caused by this copying.  The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales.  This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance  and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses.  I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional  revenue stream for publishers is.

The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case.  The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not.  By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us.  In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study.  In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience.  Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.

UK and EC Mandate Open Access for Government Funded Research
The Research Councils of the United Kingdom (RCUK), a body representing the UK’s seven government-funded grant agencies, announced on July 16th that it had approved a policy mandating that all publications produced from grant funded research have to be made public 6 months after publication beginning in April 2013. (The blog for the  journal Nature provides a great summary of the policy and its effects.)  A day later the European Commission announced that it would similarly mandate open access. Its proposal endeavors to open up all the work funded by its Horizon 2020 research program, set to run in the European Union from 2014 to 2020 and disburse €80 billion (US$98.3 billion).  The EC says that it is aiming for 60% of all European publicly funded research articles to be open access by 2016. Meanwhile, in the United States, the National Institutes of Health remains the sole federal agency mandating open access for grant funded research, and a bill (FRPAA) proposing to expand this mandate to all federal agencies remains in limbo until after the November 2012 elections.

There is Strength in Numbers, But is There Also Change?

Whether it began with the civil rights marches of the 60s or the Vietnam War protests of the 70s, the modern method of working to bring about change is by communities of like-minded or similarly-situated citizens joining in a single act of defiance of an identified “evil.”  Last year we witnessed the rise of the “Occupy Wall Street” movement, a gathering of citizens in protest to the greed and corruption in the financial sector of our society. Although the movement has received much attention in the press and experienced expansion and presence in cities across the country, there is question of whether this collective activity can bring about real change. Similarly, researchers, librarians, and other academics have been engaged in collective action intended to bring about a change in proposed and existing intellectual property laws, including copyright and fair use.

Last fall, two separate bills (the Stop Online Piracy Act or SOPA and the PROTECT IP Act or PIPA) were introduced in Congress to address the problem of copyright infringement online. The bills’ opponents claimed that the net effect of the enforcement scheme outlined in the bills was a violation of First Amendment freedoms. On January 18th, nearly 50,000 web sites intentionally went dark in protest to SOPA and PIPA. Millions of citizens expressed opposition to SOPA and PIPA through social media venues, email, and other forms of digital communication. As a result of this mass online outcry, several U.S. Senators switched their position on the bills. And within three days of the blackout, the sponsor of the SOPA bill tabled the bill indefinitely. In the short term, it appears that this form of Internet-fueled democracy has resulted in a desired change. However, this does not mean that other bills will not be proposed or that more dangerous legislation, such as ACTA which is currently under vote in the EU, won’t soon be threatening our rights.

Another avenue through which change has been attempted is through development of community-based fair use best practice codes. The Center for Social Media, in partnership with various communities of users of copyrighted content, has created a series of best practice codes outlining principles for the fair use of copyrighted material by those particular communities. One of the most successful best practices codes was developed by the Center and documentary filmmakers. Following interview and survey of numerous notable and veteran documentary filmmakers and distributors, the documentary filmmakers’ best practices code “makes clear what documentary filmmakers currently regard as reasonable application of the copyright “fair use” doctrine.” That is, other filmmakers can rely upon the code for guidance in determining what is fair use of copyrighted content and when permission should be sought. As a result of this community-based approach, the number of infringement claims arising from documentary film making has decreased and errors and omissions insurance have more readily offered coverage for fair use claims.

Last week, the Center, along with the Association of Research Libraries, released the long-awaited Code of Best Practices in Fair Use for Academic and Research Libraries. This Code is the product of nearly two years of surveying and interviewing librarians regarding their employment of fair use in their daily work. To date, librarians have relied upon various fair use guidelines that have cropped up since the enactment of the Copyright Act. However, unlike some of these other guidelines, the Code did not solicit the input or buy-in from those most often on the other side of the fair use debate with librarians, publishers standing as rights holders. Further unlike the prior guidelines, the Code does not attempt to set forth quantifiable fair use limits, which have only served to impede and limit the employment of fair use. The Code, as fully admitted by its authors, is not the silver bullet many librarians were hoping for since learning of the project; as stated in the introduction, this Code is “not a comprehensive or exhaustive guide to all possible applications of fair use in and around libraries.” Rather, the Code enumerates eight scenarios in which clear consensus regarding fair use was identified. However, each of these scenarios, or “principles” as the Code refers to them, is accompanied by a series of limitations and enhancements, which merely articulate the nuances librarians routinely grapple with and try to reconcile within and without the strictures of existing fair use guidelines. The eight principles also include a couple principles that I believe to be “no brainers” and not the subject of debate or confusion among my peers, namely reproducing materials for disabled patrons and digital preservation of at-risk items.  Nevertheless, I am not surprised by the limited guidance and clarification in this new Code; as I predicted last January, without “a judicial or legislative clarification of fair use as applied to the ever-evolving  modes of publishing and content delivery” a best practices document will not be an effective vehicle for change.

A final example of an academic community trying to bring about change through numbers is the recent call by researchers for a boycott of publishing giant Elsevier. In support of the scholarly prize-winning mathematician Tim Gowers recent scolding of Elsevier for its high journal prices, strong-arming of libraries to buy bundled subscriptions, and support of the Research Works Act, as well as SOPA and PIPA, an Internet petition was formed where researchers can publicly declare their intent to no longer write for, referee, or edit any Elsevier journal. At the time of this writing, nearly 2900 faculty members, scholars, and scientists from around the globe have signed this petition.

The rapid increase in petition signatories and the growing press attention to the petition and the problems it highlight leads one to believe that a positive change is imminent; however, this may not be the case. As well-known technology writer Glyn Moody recently noted, this is not the first (or the biggest) attempt that a collective effort to change the business model of scholarly publishing. In 2001, 34,000 scientists signed onto a letter put forward by the founders of the Public Library of Science calling for the establishment of an online public library that would provide the full contents of the published record of research and scholarly discourse. Many of those same signers pledged to boycott those publishers who did not participate in this endeavor, but very few actually followed through with their boycott pledge.  Going back even further, when the Internet was created in 1991, it was for the stated purpose of better facilitating scientific communication and the dissemination of scientific research. “Put another way, the Web was designed to disrupt scientific publishing.” Finally, if change in Elsevier’s (or any similarly operating publisher) business practices does not occur, what “collateral damage” may occur as a result of a boycott, and is this damage something we are prepared to deal with?

I fully support open-access, as a librarian, an author, and a tax-payer. I do not condone the practices of the Elseviers of the world. I believe that change can occur through collective action. However, we need to be mindful of what efforts may truly be needed to bring about the desired result and what consequences may exist if that desired result occurs.

A Case of Open and Shut

Since its introduction in October of last year, the Stop Online Piracy Act (SOPA) has captured immense attention from legislators, online business proprietors, copyright experts, and privacy proponents. From the intense exchanges of opinion both on Capitol Hill and among non-politicos, an unlikely champion has arisen in Republican Congressman Darrell Issa. Promoting citizen participation in the legislative process, Issa launched a web site, based upon a theory of crowdsourcing, for the public editing of a bill called the OPEN Act (Online Protection & ENforcement of Digital Trade Act). The bill advocates approaching the piracy problem through international trade law and not through local law enforcement measures.

However, while publicly standing as  for open government through citizen participation and an open internet economy, Issa quietly took a step last month to shut the doors on access to government-funded research. Entitled the “Research Works Act,” the Issa-sponsored bill, a poorly repackaged version of the failed “Fair Copyright in Research Works Act,” would, if enacted, prohibit all federal agencies from adopting, implementing, maintaining, or continuing any policy or program that provides for the online and public dissemination of commercially published and peer-reviewed research without the publisher’s consent. The effect of the bill would be the termination of the NIH public access policy and the foreclosure upon the idea of broadening the scope of that policy’s application.

Not surprisingly, although disturbingly, the Association of American Publishers (AAP) issued a press release applauding the bill. AAP President Tom Allen is quoted as stating “America’s [Professional and Scholarly Division] publishers are making more research information available to more people, through more channels, than ever before in our history. At a time when job retention, U.S. exports, scholarly excellence, scientific integrity and digital copyright protection are all priorities, the Research Works Act ensures the sustainability of this industry.”  The release further asserts: “Journal articles are widely available in major academic centers, public libraries, universities, interlibrary loan programs and online databases. Many academic, professional and business organizations provide staffs and members with access to such content.”

The AAP’s statements are factually misleading. The academic entities referenced cannot afford to provide access to the large body of research that is available exclusively through commercial publishers; it is no secret that libraries and other institutions have had to make difficult budgetary decisions about maintaining subscriptions to these publishers’ publications and databases. Further, authors and researchers do not publish in AAP’s members’ journals for monetary gain and often give up all of their own intellectual property rights in exchange for publication. As a result, access by the author’s employing institution and its students is often also bargained away. Further, the AAP’s stance ignores the fact that additional publishable works, for which they can recover subscription fees, are produced as a result of the increased discoverability and collaborations that occur when there is public access to research, particularly in places where there is no possibility of access except through public channels. There is no evidence that policies such as that of the NIH have economically hurt publishers to such a degree as to outweigh the benefits realized through open and public access to scientific research.

Issa, in a statement posted on his OPEN Act web site, proclaims that Americans have the right to benefit from their own creation. Shouldn’t the American public, then, have the right to benefit from the research that they have funded? Without the tax dollars paid by Americans, there would be no funding for federal research, and without federally funded research, publishers would suffer a sharp decline in publishable material that their readers want and need to read.  Apparently Issa wants to be the American public’s doorman, determining when and for whom the door may be open and shut.

The Copyright Register’s Roadmap

Last week new Register of Copyright Maria Pallante issued the U.S. Copyright Office’s policy priorities for the next two years.  Several of these priorities, as will be realized through published studies and legislative support, are relevant to the work of academic libraries, including orphan works status, mass digitization projects, and the § 108 exception for libraries.

Just a couple days after Pallante issued her report, the Copyright Office released one of the studies, referenced in the report, on mass book digitization. The study notes that mass digitization projects, whether involving a few titles or millions, implicates several sections of the existing copyright law.  Acknowledging the expertise of entities such as Google and Internet Archive who have been actively involved in mass digitization and the diverse interests of the various stakeholders, the study suggests that federal cultural institutions involved in preservation, such as the Smithsonian and the National Archives, should also be consulted by Congress in determining the best framework for mass digitization projects. The study also notes issues to be addressed, including questions already raised in the Google Book Search case, and queries whether these issues are of sufficient national importance to warrant changes to the existing copyright law, namely sections 107 and 108 of the Copyright Act, which the study points out do not presently contemplate or adequately cover these types of projects.

After defining the research studies to be released, the report turns to the Copyright Office’s legislative priorities for the coming two years. Though, as the report suggests, the Google Book Search litigation has stymied legislative progress on orphan works and on the § 108 library exception, Pallante urges Congress and pledges support for resumption of discussion on these two important issues. To that end, the report sets forth a plan to proactively partner with members of the academic community for discussions and research on these issues. The scholarship produced as a result of these partnerships will be instructive not only to Congress but also to those navigating the current framework in efforts to preserve our intellectual history and make it available for personal study and academic pursuits. Also detailed is a plan to increase the public’s awareness of copyright law through outreach and education. This endeavor hopefully will serve as a balanced and unbiased presentation as compared to the alternatives presently available from both sides of the copyright and fair use debate.

Who Owns Copyright in Course Materials?

With classes back in session at most American universities and colleges, students may be looking for note taking or studying shortcuts to ease them through the semester. The sharing of course notes, lecture recordings, and exam copies has become more than a friendly gesture by former students; it has become a growing commercial enterprise by brick and mortar and online entities. A couple years ago the web site Course Hero began to attract scrutiny from teachers and administrators when it offered to students a monthly subscription to access its vast repository of uploaded course materials (or earn credits for access in exchange for uploading their own materials). Secondary to the concerns of academic integrity was the concern that the intellectual property rights of professors had been violated. Many educators are concerned that their original and creative work product, such as stylized lecture slides, detailed course handouts, and well-prepared syllabi, are being made available without their knowledge or permission. Course Hero, by its own admission, does not police content uploaded to its site. Rather it relies, much like You Tube, upon the vigilance of copyright holders to file with the company a take-down request pursuant to the Digital Millennium Copyright Act.  To help counter the problem, universities have adopted policies prohibiting students from sharing course materials or have devised informational sites for faculty to assist them in locating infringing downloads and requesting take-down.

To date, no litigation has arose as a result of Course Hero or sites like it. However, a copyright infringement action is pending in a Florida district court concerning the sharing of course information and may answer the question of whether sharing of course materials actually qualifies as fair use. The lawsuit was filed after the lecture outlines and film study questions prepared by a University of Florida professor were copied and packeted for resale by a local copy shop. The professor had transferred his copyrights in the materials to a publisher, who filed the infringement action. This past June, the district court ruled on the cross motions for summary judgment. Recognizing that the text materials were protected by copyright, the district court denied the plaintiff’s motion for summary judgment on the infringement claims on the ground that questions of fact for a jury existed as to whether the copying constituted fair use. The court wrote:

Works that are original, fictional, and unpublished enjoy more protection than works that are derivative, factual, and published. [The] works as a whole are derivative, factual, and published. Furthermore, his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves, and “[t]his inevitably means that the copyright in a factual compilation is thin.” Feist. 499 U.S. at 349…Other factors in determining fair use include the purpose and character of the use, the amount and substantiality of the portion used, and the effect of the use on the market or value of the copyrighted work. 17 U.S.C. § 107. The parties have presented various arguments for and against a finding of fair use. Genuine issues of material fact remain for a jury to determine regarding fair use.

The outcome of this case, much like the outcome in the Georgia State e-reserves lawsuit, has the potential to greatly impact our understanding and application of fair use. It will also impact the validity of sites like Course Hero and any other entity profiting from the sharing of course materials. (Note – the work for hire doctrine is not at issue in this case, even though a university as employer could claim copyright ownership in course materials because the university in the case had already disclaimed any interest in these materials.)

NIH Open Access Policy Turns Three

Today marks the third anniversary of the effective date of the National Institutes of Health’s (NIH) public access policy. This policy requires “all investigators funded by the NIH submit … to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication.” Although deposit of works in PubMed Central and searches of the site have greatly increased (see graph at left) and sound arguments exist for promotion of public access to public-funded research, serious challenges, primarily in the form of proposed legislation, have been launched against the toddler policy. The first attack came in the fall of 2008 in the form of H.R.6845 (and later re-introduced as H.R. 801), entitled the “Fair Copyright in Research Works Act.”  The bill, if enacted into law, would have effectively reversed the NIH policy by prohibiting any federal agency from imposing any condition, in connection with a funding agreement, that requires the transfer or license to or for a federal agency, or requires the absence or abandonment, of any of the exclusive rights of a copyright holder.  The status of the NIH policy was solidified in March 2009 when President Obama signed into law the Consolidated Appropriations Act, which included a provision making the policy permanent. However, the assault upon the policy did not cease.

Days after the 2nd anniversary of the NIH policy, a bill was introduced (H.R. 5037) entitled the Federal Research Public Access Act. Had it been enacted, it would have required the 11 federal agencies that have outside research budgets of $100-million or more to adopt policies mandating timely public access to research they subsidize. Although not expressly held for the purpose of debating the bill, hearings in the summer of 2010 on the issue of public access to federally funded research revealed fierce opposition by publishers, notably the American Psychological Association, and the organization the Association of American Publishers to the mandate. In addition to the copyright argument raised previously, publishers strongly cautioned the economic impact suffered should open access be broadened. As reported in the Chronicle of Higher Education, the AAP argued “it is critical to distinguish between federally financed research and journal articles based on that research, which he described as partly the product of publishers’ labor. He repeated arguments often made by publishers about how their work enhances the value of research, and said that the 12-month embargo under the NIH policy is often not enough for publishers to recoup their investment.”

While the arguments promoting protection of publishers’ intellectual property and economic interests are meritorious, the arguments in favor of open and public access to scientific research continue to command greater heed. In a letter to lawmakers authored by several library organizations, the following compelling points in response to H.R. 801 were made regarding the need for open and public access to research:

  • Broad public access allows scientists and researchers to collaborate with greater ease by allowing sharing of information, expedited discovery, and innovation.
  • Public access policies ensure a permanent archive of research, which can be built upon by future scientists
  • Public access promotes transparency and accountability
  • Copyright law is not undermined under a public access policy because authors retain the ability to assign or transfer some or all of their exclusive rights to publishers or any other party of their choosing

Legislation that would expand the NIH policy, which has through the embargo and other terms taken into account these other interests, should be supported. The Right to Research Coalition has provided excellent resources to aid student proponents in voicing their support to certain members of the federal government, including the White House Office of Science and Technology Policy. For additional information and resources on the NIH policy and its potential, visit the Association of Research Libraries NIH Public Access Policy page.

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