|—||From a blog post this summer - My Quirky Workflow | Zachary M. Schrag. File under community practices for copying and scholarship!|
A new infographic released today tells the story of library fair use and the Code of Best Practices in a clear and compelling way. There’s an embeddable PNG for your own blogs, and there’s also a print-ready 8.5” x 11” version in case you need hardcopies to hand out at events.
The ARL Code of Best Practices in Fair Use for Academic and Research Libraries has been around for a year and a half, now, and we’ve seen how it’s changing practice around the country. The Code team has been on a whirlwind tour doing in-person events and webcasts to promote the Code all over the country. Now it’s time for library fair use enthusiasts to help spread the word, and this infographic is a powerful tool that can help pique interest in the Code itself and the overall story of how fair use has evolved to become a powerful users’ right. Share the link, embed the image on your site, print some copies for your next event, and help us keep moving libraries forward on this vital issue!
The Library Copyright Alliance brief is one of twelve amicus briefs filed this week in support of the HathiTrust and its partner libraries. Other filers are:
the American Association of Universities, American Council on Education, Association of Public and Land-Grant Universities, and several other higher ed associations
The University of Illinois, Michigan State University, University of Minnesota, University of Nebraska, Northwestern University, Pennsylvania State University, and Purdue University
Large numbers of disability rights organizations and advocates, including the Association on Higher Education and Disability (AHEAD), American Council of the Blind, National Association of the Deaf, and the Disability Rights Legal Center, as well Marilyn Chafee, an advocate for dyslexic persons and daughter-in-law of Sen. John Chafee (author of the Chafee Amendment) - these groups filed two briefs across two sub-groups
Benetech (Bookshare) and Learning Ally (the leading providers of accessible audio and e-books) (brief prepared pro bono by Brandon Butler)
133 Academic Authors
Over 100 digital humanities scholars
22 Law Professor Experts in Disability Law
Six leading medical historians
The Emory Vaccine Center
The Center for Democracy and Technology, Electronic Frontier Foundation, and Public Knowledge
The Library Copyright Alliance (LCA) filed a friend of the court brief today in support of Georgia State University in the appeal of Cambridge U. Press et al. v. Mark P. Becker et al. In its brief, LCA argues that GSU’s e-reserves policy is consistent with widespread and well-established best practices for fair use at academic and research libraries, and that these uses have no negative effects on scholarship. LCA is represented by Jonathan Band and attorneys from the Electronic Frontier Foundation. The case is on appeal with the U.S. Court of Appeals for the 11th Circuit.
The case began in 2008 when Cambridge University Press, Oxford University Press, and SAGE Publishers sued GSU for alleged copyright infringement. The publishers argued that GSU’s use of excerpts from copyright-protected materials in password-protected course e-reserves and class sites was a violation of the copyright law. Notably, the Association of American Publishers and the Copyright Clearance Center, the licensing arm for much of the academic publishing industry, organized and funded the lawsuit.
In May 2012, Judge Orinda Evans of the U.S. District Court in Atlanta ruled in favor of the university in a lengthy decision that reviewed each of 75 alleged infringements, finding only 5 infringing uses. In her ruling, the Judge saw little evidence of market harm to the publishers, and clearly understood that current teaching practices were beneficial to teachers and students, as well as being reasonable and fair. Because of GSU’s overwhelming victory, and the publishers’ aggressive litigation strategy, Judge Evans ordered the publishers to pay GSU’s attorneys’ fees and costs (nearly $3 million), an important ruling that could help discourage future aggressive lawsuits against good faith fair users.
Now that the issues are narrowed and clarified on appeal, LCA is one of several groups filing on the side of GSU in a striking show of solidarity across the academic community. The American Council on Education, the Association of American Universities, the Association of Southeastern Research Libraries, and the American Association of University Professors, among others, are all represented in briefs defending the fair use rights of faculty, students, and librarians.
|—||Pat Aufderheide, responding to Andy Baio’s widely-circulated presentation “The New Prohibition,” in her blog post Fair Use Fearmongering, from Friends?|
Today the Consortium of College and University Media Centers has announced two very important moves to empower its members and the many constituencies that look to them for guidance about proper use of copyrighted media. First, they’ve endorsed the Code of Best Practices in Fair Use for Academic and Research Libraries as a vision of fair use practice that reflects where their membership currently stands on fair use. In endorsing the #librarianscode CCUMC joins a formidable group of library associations and allied groups:
The American Library Association
The Association of College and Research Libraries
The Music Library Association
The Art Libraries Society of North America
The College Art Association
The Visual Resources Association
Like any document reflecting community norms, the Code will grow and thrive as it is embraced by the practitioners on the front lines whom it is intended to help. The CCUMC’s support makes the Code that much stronger as a tool for libraries facing fair use questions.
The second thing CCUMC did was officially retire its 1996 Fair Use Guidelines for Educational Multimedia. If you work with multimedia in an educational context, you’ve probably encountered some of the fair use rules of thumb from the guidelines, like “Up to 10% or 3 minutes, whichever is less” for “motion media,” or “[u]p to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work.”
If you look up fair use in the Copyright Act, you’ll find an expansive provision with no mention of counting words or percentages. In the aftermath of the passage of the 1976 Copyright Act, many practitioners worried that there was perhaps not enough information in the law to guide practitioners who must apply the doctrine frequently. Over the years many communities have promulgated rules of thumb to mitigate this uncertainty, but over time those rules have not kept pace with case law. If you peruse the scholarly literature, you’ll see that fair use has blossomed into a robust protection for transformative and educational uses that can happily accommodate uses that exceed any particular numerical limits often associated with it, and that the case law and the various codes of best practice have provided reliable guidance without imposing numerical boundaries. It’s wonderful to see CCUMC’s guidance grow and evolve along with the relevant law and practice. This is big news for media professionals in higher education, and for all the students and professors who rely on their wise counsel as they work to achieve their missions.
On Monday, January 14, 2013, the Library Copyright Alliance (LCA) (whose members are the American Library Association, Association of Research Libraries and Association of College and Research Libraries) filed comments (PDF) with the U.S. Copyright Office in response to their October 22, 2012, Notice of Inquiry about the current state of play with orphan works and mass digitization.
The Office is seeking comments regarding “what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation.”
In its comments, LCA explains that “significant changes in the copyright landscape over the past seven years convince us that libraries no longer need legislative reform in order to make appropriate uses of orphan works.” Specifically, two key developments make it possible for libraries to engage in mass digitization and other projects that involve orphan works:
Court decisions (and the #librarianscode!) have further solidified libraries’ rights under fair use; and
Libraries have successfully engaged in a range of projects involving orphan works and mass digitization.
While other communities may prefer greater certainty concerning what steps they would need to take to fall within a safe harbor, libraries can rely on their existing rights, including fair use. If Congress does consider legislation, LCA suggests that Congress abandon the overly complex arrangement it arrived at in 2008 and instead make a simple one sentence amendment to the Copyright Act giving courts the discretion to reduce or remit statutory damages in appropriate circumstances.
LCA also submitted to the Copyright Office a stand-alone policy statement on the kind of copyright reform that could benefit libraries. Originally published by LCA in May 2011, the statement emphasizes the same fundamental principles as the LCA comments: confident reliance on fair use and related rights together with the suggestion of simple reform focused on limiting remedies against libraries acting in good faith.
LCA encourages librarians and libraries to submit comments, which are due February 4, 2013, and can be submitted online here.
In discussing fair use in the educational realm, we often mention that copying and distributing excerpts from textbooks, workbooks, and the like will present a challenge for the would-be fair user, as they are typically not doing anything transformative with these materials. Making educational uses of content that was written, published, and marketed for educational use looks a lot more like mere substitution and unfair competition, the kind of thing that fair use is not meant to protect. That’s why the first limitation to Principle One of the #librarianscode suggests additional scrutiny in cases where such works are used.
But, like every general statement or rule of thumb, the idea that textbooks are not easily susceptible to fair use arguments is subject to important exceptions. There’s no mention of copyright in this article about a blog that documents absurd, creepy, weird, and otherwise lame stuff the author finds in textbooks, nor on the blog it profiles, and yet this blog could not exist without fair use. And its fair use argument is quite compelling.
The blog obviously presents a case of potential infringement - images and text are taken verbatim from copyrighted works. But the purpose of the blog is highly transformative - it documents and comments on the ridiculously bad writing and just weird stuff that appears in textbooks. No one would read the blog as a substitute for reading the textbooks; indeed, as with many transformative works, the blog is a critique of the books that will likely warn readers away from the underlying works. Stavem takes only the excerpts that are appropriate to his critical purpose - images of the bizarre and offensive portions, not full-text pdfs or epub files.
Imagine if Mr. Stavem had to ask permission of the textbook authors or publishers to write his blog. Do you think he would have much luck? This is precisely the situation where fair use is meant to step in and promote the creation of new and valuable culture by preventing private censorship by the owners of existing copyrights. Stavem’s fair use argument is so compelling and our intuition of its legitimacy is so strong that even the Chronicle, which covers copyright and fair use regularly, didn’t even think to ask whether there are copyright concerns involved.
Let that be a lesson for all of us: there are no absolutes or bright lines in fair use, and even textbooks (especially horrifically bad ones) are subject to fair use in the right situation.
UC Berkeley’s University Librarian Tom Leonard is a little self-effacing as he describes a project that might not have been possible before the Code, making historic California photographs available online in a beautiful digital exhibit of the Fritz-Metcalf Photograph Collection.
Courtesy of the Marian Koshland Bioscience and Natural Resources Library, University of California, Berkeley: lib.berkeley.edu/BIOS/
At first glance these photos may be ‘mostly trees and brush,’ but (as Leonard points out) they are a rich source of ecological data as well as of emotional connection to California’s past, and they are emblematic of the kinds of unique and valuable collections in held by research libraries. Here’s Tom Leonard describing the collection and how the Code came into play as the library decided whether and how to share the photos online.
Perhaps my favorite part of the exhibit is the page about use of images from the collection, which has this wonderful exhortation:
The University encourages the use of these images under the fair use clause of the 1976 Copyright Act.
This is the fifth blog post in a series highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email firstname.lastname@example.org.
Laurie Monahan is a professor on a mission. She’s an art historian at the University of California, Santa Barbara, and for years she’s been working with colleagues to develop an open access policy for the entire University of California system. Monahan compares UC faculty negotiating publishing contracts to the classic pop artists exploited by record labels in the 1950s and ‘60s: they sign away their rights because they are alone and intimidated by exotic legal contracts. By joining together to create a system-wide OA policy, faculty present a united front and ensure wider access to their scholarly work. It’s a powerful image, and one that’s taking hold on campuses around the country.
Part of the proposed UC policy is depositing all UC-generated scholarship in an open institutional repository (IR) to make scholarly work available to the public, but that raised a red flag for some of Laurie’s art history colleagues. Their scholarship often involves embedded images that are subject to copyright, and they wondered, reasonably, whether those images could be used in an article that’s freely available to the public online. This concern should sound familiar to any librarian who administers an IR. Concerns about embedded third-party content can even cause graduate students and professors to change their research plans, focusing on subjects that raise fewer copyright concerns.
Laurie took those concerns seriously, and used the Code of Best Practices in Fair Use for Academic and Research Libraries to defend the use of third-party content in publicly available research. Principle Six of the Code states that it is fair use for a library to receive material for its IR, and to make deposited works publicly available in unredacted form, including items that contain copyrighted material incorporated on the basis of fair use. The kinds of uses made by art history scholars, who need images in order to explain, illustrate, and support their theses, are likely to be supported by a strong fair use rationale, and Principle Six simply affirms that this rationale will be sufficient to allow publication in an IR. Her email explaining how fair use applies to the IR has made the rounds in the UC community, and hopefully Principle Six will help UC move closer to effective collective action to correct the dysfunctions in scholarly publishing.
This is the fourth blog post in a series highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email email@example.com.