Georgia on my mind

Readers who have perused my other posts will be aware already of my anti-corporation leanings and my beliefs that copyright should have included in it broad protections for the public's use of works, especially in matters concerning education. People who have been paying attention to copyright at all recently will also have realized that whenever a court case appears pitting a user against a producer, the producer tends to win. Even when it does not go to court, the producers are often able to push enough money and publicity at the violation that the user is forced to settle, and in settling, agree that the publishers are correct (see the Napster Case). In general, the outlook for fair use as a user right has seemed bleak, a sad fact for me and for librarians in general.

So you can imagine that I was unsurprised when I read for this week about the Georgia State vs. Oxford UP, Cambridge UP and Sage (or as it is officially called "Cambridge University Press, et al v. Patton et al"). Briefly, this case was against Georgia's electronic reserve policy, which includes a check list ( seen here ) for professors to use to determine if the work they were putting up on reserve was indeed fair use. The publishers said that the use was too broad, too much was being copied from a single work, and that the check list was biased towards a finding of fair use among professors who did not know enough about copyright to be making the decisions anyway ("Both Sides Angle for Victory in E-Reserve Case" in Publishers Weekly). Of course, I thought, publishers are getting nervous and trying to stop any free use of their work, per usual.

Indeed, it seemed, from an article in the magazine Against the Grain by Stanford G. Thatcher, director of Penn State Press written on behalf of the publishers, that this is exactly what they want to do. Thatcher bases his attack on a set of guidelines called the CONFU guidelines, which were commissioned by President Clinton to deal with electronic material and fair use, but never actually agreed upon. Nonetheless, he takes these basically as law, and argues Georgia should be punished for not complying with them. His points against Georgia basically boil down to two factors: that Georgia did not emphasize that electronic reserves should only be for "supplemental" material so that they do not take the place of course readers and that Georgia did not mention at all that texts should only be used for one term and then permission must be sought for any further use. He says that because of these policies, Georgia's e-reserve causes University Presses' profits to take a hit, which makes them not fall under fair use.

But not only does he say Georgia is wrong and needs to be stopped, but he proposes further changes to policy, which I believe come from a wrong interpretation of fair use, and which worry me in case they become de rigueur due to the publishers being successful in court. For example, he claims that not even first use or deciding to use an article spontaneously would be an excuse for fair use (something specifically allowed in CONFU), as now people can use online access to quickly get permission from the publishers. Because permission can be so easily asked for, there is no reason not to ask and then pay if necessary. He even goes as far as to suggest that students should pay for access to e-reserves, just like they pay for course readers or textbooks. He clearly is aiming in doing away with fair use for electronic reserves entirely. In his reasoning here, he shows, in my opinion, a distinctive misunderstanding of fair use for education. To me, fair use in an educational setting exists so that more knowledge can be built upon by students and teachers, which will hopefully allow for the creation of more original works. It does not exist because right holders were just to hard to get in contact with earlier. Fair use for educational purposes is an intentional action, not an accident. But my personal opinions about such things tend not to be what the court decides.

Instead of Thatcher's version of electronic reserve rights, or even CONFU, I would like to see libraries follow the practices for fair use published by the Association of Research Libraries in 2004, before the Georgia case, but which reflect many of the practices Georgia embraced. For example, they say "limiting e-reserves solely to supplemental readings is not necessary since potential harm to the market is considered regardless of the status of the material" and "if libraries determine that if the first three factors show that use is clearly fair, the fourth factor does not weight as heavily" (fourth factor being market effect of the reserve). In this, these practices push against Thatcher and even CONFU"s guidelines about e-reserve material being only supplemental and the heavy focus on the market as the major determiner of fair use status. But knowing the Georgia case happened after this guide was published, I wanted to know if fear about litigation made library policies both at Georgia and also at the college where I work reflect a stricter sense of fair use than ARL's findings.

So I took a look at University System of Georgia's Guidelines and one place at which I have worked, Edgewood College's Guidelines to see which interpretation, CONFU, Thatcher's, or ARL's, they more closely followed, with a feeling that I already knew the answer.

In this little exercise, my gloom and doom assumptions turned out to be totally wrong. Both policies reflected ARL's findings more than Thatcher's concepts, even Edgewood, which tends to be risk adverse. Both allow core content to be used, though Georgia does mention supplemental content as something that would be in favor of fair use. I should not have been as surprised about this as I was, as I know that at least at UW Madison, electronic reserve material often composes an entire course's reading. It seems that in this at least, the publishers have lost. E-reserves have replaced course packets, and there is no charge for students to use them, even if they are core resources. In addition, the reuse of a resource from term to term is not mentioned in either policy, though both do mention that they delete electronic copies once the term is over. This lack of mention makes me believe that both of them turn a blind eye to the activity, or at least do not expressly forbid it. In this as well, then, the publishers have not succeeded in scaring libraries into submission.

Unlike most of my posts then, I shall end this one on an optimistic, upbeat note. In this battle for electronic reserves, it looks like the publishers and their court case are not having the desired effect of fear and suppression of practices as they might have hoped Practices the ARL found being used in 2004 are still being used, and libraries still actively exercise their right of fair use. I am proud of both of the schools whose policies I examined for not backing down in their rights, and in their role of promoting learning through such services. I hope that no matter which way the court case is decided, librarians continue to exercise their fair use rights, and if the court decides against it, fight back.

Licensing... (is a pit trap filled with spikes).

In the small college library where I work, licensing electronic resources is not a popular topic.  Our electronic resources librarian turns a shade paler whenever the process is mentioned, and all the other librarians avoid the topic entirely.  Perhaps it is because I am only a part time employee there, but what our contracts look like and how we negotiate for our current resources has never been discussed within my ear shot.  It is the topic untouched, disliked and feared.

Perhaps this experience is why I find words of trusting vendors and enjoying licensing once you know how to do it properly ringing a bit false. Harris, in her work Licensing Digital Content , especially in her chapter "Un-intimidating Negotiations" states that content owners really want the same thing that libraries do: they want their material to be used and appreciated. Because of this, they should be treated with understanding and trust, not with aggression.

If this is the case, if vendors and librarians should trust each other and negotiation is not scary (Harris says it is even fun), why does my library dread this process so much? Though Harris speaks soothingly and stresses that license providers are not to be feared, I found that the actual process of licensing detailed in her book, as well as information about current vendor behavior brought up by Russell in her book Complete Copyright and in an article written by Hadro for Library Journal entitled "Researchers aim to help libraries negotiate better on complex deals", belie this calming attitude. For example, Harris, in her discussion of clauses to include in an effective license, emphasizes over and over again that everything a library would want to do with content must be specified, in detail, in writing. Do you want to make sure fair use still actually exists for this content and that the publishers will not forbid it? You need to make sure you say this in the license. Do you want to make sure you can have patrons print a copy for themselves? You need to specify this in the license. She also mentions at least ten times that one has to make sure that license providers actually have permission to license the desired content. This gave me the impression that many libraries have been scammed by companies, which makes me even more wary of the process and distrustful of vendors.

When I read all of this, while I was glad to have it placed in front of me in an easy to follow fashion for when I have to negotiate licenses, it did not put me at ease or help me trust license holders. Indeed, it had the opposite effect. It made me feel that licensing is a process full of horrible spiky floor traps that, if you do not vigilantly watch for them, will kill your patrons ability to use content and leave you vulnerable to being sued for large amounts of money. The thought of the perils of forgetting just one thing and then making my whole library (and especially the patrons who need the content!) suffer, terrified me. Even her words meant to make negotiating un-intimidating, especially her suggestion to bargain away things wanted to guarantee getting rights needed, made me uncomfortable. This whole process strongly reminded me of buying a car, and how much I hate that entire interaction, with its cajoling, its jockeying, its bluffing . Perhaps I am just not suited for this work, but I would worry about my ability to be canny enough, to read between the lines, and fight for what the library needed without becoming antagonistic (which tends to be the eventual outcome when I do something like buy a car). It seems like an incredibly difficult, emotionally draining process full of constant vigilance, and I can understand why the librarians at my college hate it.

Russel and Library Journal do not help me feel any better about the process, or trust vendors. Russell discussed UTICA, a law on the books only in two states, Maryland and Virginia, and facing fierce opposition from libraries, lawyers, and software dealers. This law discusses licenses for software and online products that are non-negotiable, and must be agreed to before using the content. While this takes away the fear of the negotiation process, some of the things companies and vendors are trying to push through with this, like not allowing public criticism of their work and content, show that these companies are not operating with libraries or the public in mind. Instead, they will do whatever they can do protect their piece of the pie. If this is at least what some vendors want to see as law, it makes me less likely to look kindly on online vendors as a whole. Hadro's article in Library Journal, which discusses scholars winning an open records case against two major e-content publishers, Elsiver and Springer, also makes me believe that these big companies at least are not on the libraries side and would be difficult entities with which to negotiate. Elsiver and Springer said that they would not release their contracts with the University of Texas because the contracts are secret and would hurt them. While the article only tells their official reason, that the contracts acted as "trade secrets", I would assume that the actual reason they do not want other libraries to know about the content of the contracts is that they do not want these other libraries to realize what rights and deals they might be missing. With this kind of secrecy and distrust about libraries getting rights among content owners, how can libraries be trusting in turn?

So, with all of this clear reason to not like licensing and not trust publishers, why does Harris insist in saying that trust exists? For Harris, I think it is a small lie used in an attempt to get more librarians willing to negotiate licenses and stand up for their needs, instead of accepting whatever license a company gives them to avoid the stress and drain of the negotiation process. By saying one can trust publishers and actually reach a win-win solution, people might be more willing to give any type of conversation a go. Even if they do not get everything, they might end up with more than if they just accepted a license at face value. I think that this is a worthy goal, but as I have mentioned before, paying attention to any of her cautions will make one doubt her words, which is unfortunate. Licensing is so difficult and technical though that I do not believe anyone could make it sound fun or even positive. Harris makes a good effort, and her reasoning for the tone is good, but I do not know how many librarians afraid of licensing this will actually convince.

Removing the Copy from Copyright.

In my last post, I commented  that the United States needs a new copyright law, but did not know what form it could take.   Then I read chapter 12 in Litman's book Digital Copyright, in which she proposes a new form of copyright, based not on controlling all copies derived from a work  but instead on commercial exploitation.  In addition to this, she would make explicit the right for private parties to make electronic copies and to cite electronically using hyperlinks.  Most interesting to me, she would make all playing with and building on copyrighted work legal as long as there are links back to the original work the new work draws upon.   Basically, all copying would be legal if it did not pose a significant threat to the profits of the copyright holder.  Her reason for the switch ties into something I noted in my last post: copying has become a lot easier as of late. Due to the difficulty in copying up until the mid 20th century, "multiple reproduction was a chiefly commercial act" (Litman pg. 178).  Therefore it made sense to judge commercial exploitation by copy.  Now, however, copying is easily accomplished in private for one's own creativity or enjoyment, and often has nothing to do with exploitation.  Therefore, believing all copying is harming profits no longer is true.

Now, I do not know if she is correct in saying this law better captures of the spirit of copyright as intended in the constitution (not being a legal scholar),  but I find it intriguing.  In this post, I want to explore what I believe its effect would be if enacted.  I am going to do this through examining how this law would effect both  library licensing practices, as described in Lesley Ellen Harris' Licensing Digital Content and fair use as exemplified by the CONFU attempted library guidelines as described by Georgia K. Harper in the website "Copyright Crash Course" (located  here).

In terms of licensing, I think Litman's proposed law would help libraries be less scared of litigation and therefore allow them to create simpler licenses.    Reading Harris' book, it seemed to me that she was speaking to librarians who were afraid, both of the licensing process and the content owners.   After reading the first two chapters in Harris' book, I can understand that fear.  The book explains that libraries often have no permanent rights to the material they purchase, that licenses must be struck for everything, even using a photograph on a website, and that lawyers are necessary so ones library and patrons do not get screwed over. Its intimidating stuff.

Under Litman's new laws, copying an entire journal's content from another library and then offering it to your patrons would still be considered commercial infringement.  However, posting a photograph on a library's website would not require permission.  As long as the photograph on the website links back to the original location, I do not think this use would hurt the original photographer's ability to make money, and therefore would be legal.  Basically, agreements would still be needed for large scale expensive purchases, but the library would be more free to use other work in a small way.  In addition, with a clear law that gives private individuals an explicit right to copy, libraries would not need to constantly worry about having to monitor their patrons or deal with the content owners trying to infringe on their patron's privacy through electronic monitoring.  As individuals, patrons would have every right to make their own copies either electronically or print, and share them with others.  Libraries would have much more weight behind their and their patron's use of materials, and hopefully this would help licenses be less complex and librarians less fearful.

In terms of CONFU, guidelines for fair use would be hopefully become clearer and such lines as "every reasonable definition for fair use is fair game for a lawsuit"  (Harper, section 7) and the fear that inspires, would not be needed.  While wholesale copying of textbooks and then handing them out to a class would still not be fair use, as it would hurt the profits of the textbook company, the copying of articles for a small discussion group by a student would be for private use and would therefore be completely allowed (again, as far as I can tell).  Using a picture for a class Power Point with proper citation but without permission would also be fair use.  While there still would be ambiguity, I believe this would help make fair use a bit broader and a bit clearer.

So, the results, as far as I can see, would be an environment more friendly to fair use and a less full of the fear of litigation.  Of course, I fully admit I could be interpreting Litman wrong.  I seem to be rather poor at coming up with correct interpretation of the law in general.  For example,  this week I read four different court cases about copyright and fair use and I guessed wrong on every final ruling.  Good thing I am not planning on going into law. Because of my issues with law interpretation, I would be interested in hearing what others thought. Do you think my analysis of how Litman's proposal would affect library fair use and licensing is accurate, or did I miss the point entirely? 

Copyright versus Creativity

Greetings!

It has been a busy week for this library student, and so I have not yet completed all of the readings.  As such, I will be making a second blog post once I have finished.  However, I have been thinking a lot about one particular topic that has come up in Litman's book Digital Copyright and also in a video watched in class entitled Rip! , that of copyright versus creativity, and just wanted to take the time to write down my thoughts.

Litman points out in her chapter "Just Say Yes to Licensing" that she believes copyright rules have not taken precedence in people's minds because they do not seem to make sense.  People cannot fit them into their mental and moral framework, and end up ignoring them.  It is not that they set out to be thieves, it is that they feel that they have a right to use other's works in an interesting and different way, to play with things and that the government should not have a right to control this. Rip's director Brett Gaylor shows us the end result of this disconnect: people have taken the material available to them online and have created whole new art forms based on playing and sampling this material.  They are borrowing in a way that they feel is fair.  Hip Hop and rap artists, as well as electronica artists rely heavily on samples of other people's work.  YouTube is filled with videos mixing an image from one source with the audio of another, often to humorous effect.  I listen and view this type of work everyday, not thinking about the fact that it might be breaking copyright.  Even though I am a library student (and so technically should know better), I still suffer from this disconnect. I can't believe what I am watching on YouTube that has been made simply for fun, not profit, could actually be illegal.

Processing this all, I realized that the main reason I find it so difficult to wrap my mind around current copyright rules is, as a lover of literature and music, I understood long ago that there are very few completely original works.  I know that copyright, as both Russell and Litman make clear, does not protect ideas, it protects manifestations, no matter how derivative they are.  But that is the point.  Works have always been based and drawn, either to a great deal or little, on what has gone before.  One of my favorite works, as a true geek, is Star Wars, a work that, while new in its approach, was directly based on the hero myth structure set up by scholar Joseph Campbell.  An even more blatant example of borrowing from Star Wars was the styling of Naboo in the second trilogy.  Compare the picture of Naboo to Waterfall City from the excellent book Dinotopia:

Production Art of Naboo

Waterfall City by James Gurney.

All of these works, Star Wars, Joseph Campbell's A Hero with a Thousand Faces, and James Gurney's Dinotopia are copyrighted works. Yet, they build and borrow from one another, creating new from old.  So far, it has not destroyed the world.

When digital users manipulate copyrighted content and view it, they are simply following in the steps of what humans have done for thousands of years: see a creative work, be inspired, and from this inspiration, build something new. The difference is now that material to manipulate is easier to obtain, and so more people can work with it. Copyright holders can no longer rely on people physically not being able to get their hands on information as a barrier to such creation. As Litman says "The old balance is gone. Whatever approach we choose, we need to find a different balance" (pg. 115)  Litman brings us some hope that in the last copyright negotiation, for the Digital Millenium Act, user groups, like libraries and law professors, actually tried to stand up to restrictions via the medium that these restrictions were trying to control: the Internet. Sadly, many of these public advocacy groups, including the library, were ignored. However, I believe that we can, as librarians and the public, strive to create a new balance, and that balance should be one in which creating new things out of old should be celebrated, not quashed.

To top it off, here is one of my personal favorite remixes. Without this type of play, I would have never known that Crank Dat by Soulja Boy and Carol of the Bells have basically the same beat.

Confused by Copyright? Blame Industry.

Titles referred to in this post

• Jessica Litman (2006), Digital copyright,chps. 1-6
• Carrie Russel (2004), Complete copyright: An everyday guide for librarians, chpt. 2
• Mary Rasenberger & Chris Weston, (2005). Overview of the libraries and archives exception in the copyright act: Background, history, and meaning [Section 108]

Working at a small liberal arts library, questions of copyright and fair use come constantly into play, especially concerning electronic reserves and inter library loan. While I have worked at this college for over a year, I never felt that I knew the why or how of copyright and fair use; I simply picked things up from overhearing them. I did not even know if the things I followed, such as any more than 10 % of text being used for teaching was a violation of fair use, were even true. Only after reading the selections I have listed above do I now feel like I even begin to understand the why of copyright and where libraries rights actually fit. In this post, I want explore why I believe, based on what I learned from the above readings, my knowledge, and indeed the knowledge of my fellow librarians, is so spotty concerning this issue. The answer? The law was not written for us.

Both Litman and Rasenberger & Weston provide insight into why copyright and fair use confuses so many of us (including me!). Litman, not hiding her distaste for current copyright directions and industry, explores in detail how copyright law in the 20th century has become a process of industry pandering, with congress pushing copyright decisions onto current industry stakeholders, thereby avoiding political heat. It also resulted in a law that is full of detailed, narrow exceptions based on complex compromises with little thought for the future. While her clear bias this does make me wonder what the other side of the issue might have to say about this, after reading Russle and Rasenberger & Weston, I am inclined to agree with her assessment of both the state and cause of the law. Now, I admit that I also tend towards anti-corporate leanings, which means that I am naturally inclined to agree with Litman. However, her claims are backed up by Rasenberger and Weston in their analysis of section 108 of the current copyright law which governs library photocopying rights. In their article, they discuss how book publishers being concerned over losing any profit due to copying held up any type of law from being created on this matter until 1976, over 15 years since a law about this issue was first proposed. In the end, the law, in total around 3 pages, due to the nature of exceptions based on publishers insistence, takes Rasenberger and Weston over nine pages to explain

So, corporations are in control of our copyright, causing it to be narrow and confusing and not built for the public to understand. Because of this, copyright and fair use continues to confuse librarians and continuing to leave copyright in the hands of industry will, I believe, not change this situation. Why? In my biased, liberal view (which seems to have been borne out in the squabbles that caused copyright to remain unchanged from 1909 to 1976!), corporations have one goal in mind: survival through competition crushing. This goal seems to backed up not only by the simple fact that industry kept copyright at a standstill from 1909 to 1976 due to inter party squabbles, something just amazing to me, but in specific, more recent actions as well. One situation that stands out in my mind is when Litman discusses how cable companies negotiated with congress to make the new satellite companies pay more to broadcast copyrighted programs compared to themselves.

This control by corporations seems to have led directly to some of the current issues we now face in the so called "digital" age. One only has to look at some of the current video game companies and their use of DRM (Digital Rights Management), which forces a person to be online and monitored every time they play in order to prevent the legal purchaser from installing the game on numerous computers to see where corporations concerned about profit making decisions about law has led. And due to this, librarians live in fear of making the corporations angry, breaking one of the many laws that fill the books, not even able to understand sections 107 and 108 of the 1976 copyright law, the ones that apply to them most directly. As Rasenberger and Weston's quoting of the laws show, they are filled with warnings against any crossing the line, and filled with words like "fair" as in "the library must first consult the copyright owner and trade sources to determine that an used or unused copy cannot be purchased at a fair price" (section 108e in H.R. REP. No. 94-1476, at 75-6). What is a fair price? Given this ambiguity in language and the frequent mention of the severe penalties of breaking the law, as well as in recent years, the increase in lawsuits over digital piracy, is it any surprise that libraries are not only confused but afraid of what the corporations might do if they even try to exercise their law given rights?

Three Possible Solutions

So what can be done? While rewriting copyright law as three pages of prose that some one in grade school could understand, as Litman suggests, would be ideal, it is probably not the reality. One thing that can be done is to write to one's congressperson and let them know that copyright is something that should be maintained with the public consumer in mind, without who the copyright interest holders would not exist. Push for transparency in copyright discussions, and push for them to get involved and not just pawn it off on people with vested interests in making money from publishing and production. Congress might not listen, but it is a goal for which to shoot

Another thing is to be educated. A great place to start is Russel's book. Use it to educate yourself and staff at wherever you work. Through this book, for example, I found out that what my College is currently considering law is in fact only from a guideline called the Classroom Copying Guidelines . It is not binding and was meant as a guideline for minimum use, not maximum. That 10% of a book rule? Not true at all. If one can make a case more of the work is essential for teaching or general education and that it will not be in such great use that it will hurt the companies profit, one can use more! Many libraries believe that these guidelines are indeed the word and letter of the law, but this comes from lack of education and study. The truth is fair use is far more wiggly than that, and it requires judgement calls that are more complex than a simple checklist. Because of this, education is essential, and Russell's book is an excellent place to start.

Finally, an strong copyright policy and especially fair use policy is essential for a library to have in place. While this is never specifically mentioned, and I am in no way a policy expert, I think such a guideline would be essential to maintain consistent use so that patrons do not get confused over different people giving them different privileges. It should be based on the guidelines, but should allow for broader interpretation. I admit, I am not sure how such a policy could be made to be consistent but still flexible enough to handle the amount of factors that go into determining if something is correct under fair use and copyright, though. What do you, my possible readers, think?