Copyright Utopia, Day 3 - Licensing Panel

Licensing and the Commons as Copyright Alternatives
Kimberly Bonner (moderator), Mike Carroll, Solveig Singleton, Elizabeth Winston

Cautionary/negative view (Elizabeth Winston):

• copyright does not fit all takers - some want tighter controls, others want fewer
• legislation restricts copyright holders' rights after the first sale, but licensing enables holders to retain control
• using licenses to transfer copyrights (retaining titles) risks monopolization [*I personally believe such risks are minimal*]
• one legitimate justification for use of license does not automatically justify licensing rather than transferring, as other user rights may be unnecessarily corroded

Supportive view (Mike Carroll):

• goal of Creative Commons is to get out of normal copyright allowances by licensing legal sharing of creative, scientific & educational materials
• one size does not fit all but standards are nonetheless necessary
• CC provides standardization in licensing
• CC inspired by Open Source movement; idea born in 2001, licenses released 2002
• each of the 6 possible licenses have three versions: metadata, human readable, legal
• CC licenses do not apply only to digital works; try to be medium-neutral
• have been used on blogs, photos, research articles, teaching materials, music, film, books
• CC licenses have role to play in domain where researchers just want credit/prestige for their work, not monetary compensation
• growth in use of CC licenses impressive (measured by link backs): Dec. 2003=1 million; Dec. 2004=5 million; June 2005=12 million; June 2006=145 million [*when these numbers where shared the person sitting beside me - a top administrator with the Copyright Clearance Center - softly exclaimed "Wow"*]

Cautionary/positive view (Solveig Singleton):

• licensing may not solve copyright problems
• trade creates wealth, voluntary licenses are trade, so both parties are better off, both benefit
• compulsory licensing, however, cuts into benefits; top-down, non-negotiable, one side raw deal
• voluntary licensing is form of Utopia but requires active participation
• nevertheless, there are problems with voluntary licensing: fragmentation (think of all the issues with music: composer, performer, producer, etc.); getting around public legislation (DRM); public legislation itself (criminalization of violations)
• the need to get around public legislation and the extent of public legislation are themselves symptoms of a collapse of copyright enforcement in the digital landscape, an issue which none of the licensing options address
• it is worth thinking hard, creatively about Congressional-level addressing of license fragmentation and non-enforceability issues in technological world
• think "hatless": when thinking about how to solve copyright problems, we need to take off the multiple hats we wear (those of consumer, producer)
• private licensing agreements are worthwhile experiments that need to go forward

Copyright Utopia, Day 3 - Legislative Panel

Tweaking Copyright: Legislative Alternatives
Kimberly Bonner (moderator), Miriam Nisbet, Robert Samors, Gigi Sohn

• 110th Congress (current term) is unusually quiet on copyright, although 3 of the 4 copyright reform bills/initiatives are positive
• big copyright issues are currently in the courts, hence affecting the actions of Congress
• also slower due to shift from Republican majority to Democrats, as well as focus on judicial system issues (fired lawyers), FBI examination, & patent reform bill
• Democrats have tended to be more friendly to Hollywood (the land of big donors) by protecting copyrights
• notion of only one type of copyright holder no longer holds with rising among of user-generated content
• the current big danger is not potential Congressional action but action from the copyright office: some believe the office is over-reaching its role to make policy pronouncements, believing duty is to push back changing tide of copyright control in defense of traditional copyright holders; as an office, the mission is to serve the people, which includes copyright holders of participatory media
• reforms are needed in areas covering orphan works, DMCA, DRM notices, licensing that permits YouTube posting without fear of notice-and-takedown, limiting statutory damages
• although such reforms are not possible in the short term, they might be in long term
• H.R. 1201: introduced in late February; would amend DMCA to add relief to DRM breaking prohibition in legitimate circumstances such as fair use, educational uses, and library/archives preservation (all currently illegal)
• hoping to see orphan works (works whose copyright holder cannot be identified/located) bills in both House and Senate; would allow for use of orphan works without risk of statutory damages if good faith search does not locate copyright owner
• study group examining possible changes to Section 108 (library/archive specific section); section is out-of-sync with digital age in terms of copying guidelines (both preservation and personal use), ILL
• librarians have an important role to play in copyright reform, either by individually contacting Congressional representatives or by identifying our institution's government relations/Congressional liaison person
• imperative that faculty and students understand copyright, so hold copyright education campaigns on campus; doesn't necessarily have to be clever but needs to be sustained
• work to have copyright added to Faculty Senate and institutional agendas
• think about copyright reform less as an economic issue and more as an educational mission
• clearly stipulate self-interest for universities, faculty, students

Copyright Utopia, Day 2 - International Panel

International Approaches
Kimberly Bonner (moderator), Susan Anthony, Olufunmilayo Arewa, Matthew Skelton

This panel session basically provided a peak at other countries' approaches to copyright and fair use, and served primarily to emphasize how different US copyright law is from other Berne Convention member countries, especially with regard to fair use. Several European countries, including Germany and France, use private copying levies as an exception to copyright holders' exclusive reproduction rights. These levies are charged to manufactures of machines and data storage devices used to make copies of copyright-protected materials. Copyright holders then use an intermediary organization for remuneration with governments to recover levies. Although the US fair use doctrine does allow for some private copying, it is not as permissive as private copying levies.

The Organization for Economic Cooperation and Development (OECD) recently released a paper/statement on participatory media. Participatory media or UCC (user created content) does not apply/cover consumptive entertainment. UCC - blogs, wikis, mashups, social networking sites - currently dominated by young, male creators. Making an entire copy of anything is virtually never fair; good rule of thumb? Maybe...

Culture by definition is shared. US fair use law is atypical in context of other international copyright laws. The Berne Convention's education exemption is neither transparent or apparent, so lots of countries don't use it. The debate between producers and users of copyrighted materials plays out in different ways internationally, but still plays out.

Copyright Utopia, Day 2 - Keynote & Panel Session

Utopian Visions of Copyright: Tweak, Transform or Opt-out
William "Terry" Fisher, Berkman Center for Internet and Society, Harvard

Copyright utopia would include...

• creators are fairly compensated
• opportunities to engage in creativity are widespread (semiotic democracy)
• cultural diversity
• all persons have ready access to ideas, information and entertainment
• all persons have access to rich, empowering, continuing education

5 ways current copyright system impedes this Utopian vision - and possible cures...

• proliferation of protected, unregistered works - creates unnecessary obstacles for use & reuse; Creative Commons license is a cure already in place that doesn't require legal changes
• impediments to education - outmoded/clumsy educational exemptions; ambiguity of fair use; DMCA applied to education hurts film studies; overly cautious gatekeepers (universities, publishers, insurers); cure by expansion of exemptions
• impediments to semiotic democracy - modified films, mashups, amateur webcasting currently not permitted; cures include modifying fair use for greater latitude for transformative works & less latitude for consumptive works, define "derivative work" more narrowly or eliminate altogether, and resist expansion of rights of integrity
• impediments to search tools - cures include changing fair use to shield innovative tools such as Google Books or change default rule to opt-out (example: notice-and-takedown policy)
• crisis in entertainment industry - heightened by technological destabilization; cures include strengthening intellectual property rights, reinforcing self-help strategies, an alternative compensation system, or a renewed entertainment ecology
• modest reforms, even some without required changes to existing law, are obviously necessary

Panel Session Response
Kimberly Kelley (moderator), Patricia Aufderheide, Alec French, Jim Gibson, Tracy Mitrano

• universities traditionally resist critical assessment of copyright, which is converse to established educational practices, and simply state "this is wrong, end of discussion" - this needs to change if we're going to foster engagement and understanding in students, faculty
• copyright is intended to promote continued creation of culture; to promote progress of science & useful arts - need to remember this!

Copyright Utopia, Day 1 - Keynote

Copyright Utopia: YouTube and the DMCA's Silver Lining?
Fred Von Lohmann, Electronic Frontier Foundation

• Participatory media (user-generated content) creates lots of copyright questions
• YouTube synonymous to new, emerging media form
• Political satire: "This land is your land..." Bush/Kerry video from 2004; Obama/Clinton 1984 video (take off on Apple's 1984 Super Bowl ad unveiling Macintosh computers) from 2007
• Mashups: movie trailer mashups such as "Brokeback to the Future"; "Experiment in Sound" audio & video mashup
• Parody: MoveOn.org's parody of Colbert Report was removed from YouTube after Viacom copyright complaint, which was actually falsely asserted...video back on YouTube; Disney copyright video from Stanford
• Oddities: 8 minute "Star Wars" silent movie
• The people's archive: old TV ads from the 1970s "archived" on YouTube
• When do you ask the copyright questions in regard to this emergent media?
• Because this content reaches audience first, we're able to have this debate
• DMCA (Digital Millennium Copyright Act, 1998) actually made user-upload sites possible by way of copyright violation exemption for host sites, so long as the offensive material is removed when requested (safe harbor provisions provided notice-and-takedown policy)
• Gatekeepers: traditional intermediaries (TV, radio, etc.) conservative with regard to copyright, so if material is questionable, it doesn't go out
• Bouncers: OSPs (online service providers) exempt from violations under DMCA safe harbors; everything is welcome but it'll be thrown out if getting out-of-control
• Thanks to DMCA, finally getting to see all the fair uses we deserve to see
• It isn't that copyright is not being violated - it probably is - but for the most part, no one cares
• However, the creation made possible under DMCA threatened by lawsuits, mechanized censorship (filtering technologies), DRM (digital rights management)
• DMCA safe harbors fight is fight for a *public* remix culture; essentially, a fight for fair use and free expression; this culture will continue to happen regardless but risks being driven underground
• Transformative works risk becoming collateral damage in fight against actual violations
• Things to think about in higher ed: 1) think DMCA not fair use (universities are OSPs not copy providers; have notice-and-takedown procedures; distribute links rather than copies); 2) build tools not collections (public does a better job of building archive of pop culture than any institution could so focus on ways to assist not control)

Copyright Utopia, Day 1 - Preconference

The 7th annual Center for Intellectual Property (CIP), University of Maryland University College, symposium - Copyright Utopia: Alternative Visions, Methods, and Policies - got off to a great start yesterday (Monday) afternoon with a 4-hour preconference: "Copyright 101." Being relatively new to copyright, I found this introduction helpful, particularly as the presenter, Kenneth Crews, welcomed audience members' questions and real life circumstances, providing us with a practical introduction. Since my notes from this session are lengthy and likely not of exhilarating interest to most (although *very* important to understand), I'll simply recap the highlights...

• fun of copyright is figuring out rules as they apply to our situation
• copyright and fair use are two different worlds (albeit overlapping); before you can address fair use, you first must determine existence of copyright
• copyright automatically applies to original, tangible fixed medium works, therefore in essence we are all copyright holders
• it doesn't take much to be deemed "creative" with regard to copyright
• stay away from joint copyright ownership if possible
• many types of uses desired not possible under exceptions (sections 107-122 of copyright law), so there are several options: alter use to meet exception; get permission; examine if use falls under "fair use" doctrine
• fair use "protections" such as word counts, 10%, 30 seconds, spontaneity not codified in law, only hammered out in guidelines established between libraries, higher ed institutions, publishers; *get rid of this line of thinking, especially with regard to institutional copyright policies*
• keep institutional copyright policies simple and general
• if you can avoid copyright questions altogether, do so!

State of the State

STATE OF THE STATE: SCHOLARLY COMMUNICATION IN NORTH CAROLINA
APRIL 27, 2007 – ELLIOTT UNIVERSITY CENTER, UNCG, GREENSBORO
SPONSOR: COLLEGE & UNIVERSITY SECTION OF THE NC LIBRARY ASSOCIATION

Scholarly Communications: An Introduction – Rosann Bazirjian, UNCG
· Scholarly journal publishers are charging more for electronic than print, even though cost of creation may be less
· SC needs to be understood not only as a way to solve the serials crisis for libraries, but also as a way to aid dissemination of research
· The promotion & tenure process – requirement of publishing in high impact journals – perpetuates the continuation of the crisis
· “Author pays” OA models seen as vanity presses
· Plagiarism fears cloud understanding of OA, despite the fact that copyright/IP violations happen within the traditional publishing structure
· Simple continuation of the existing publishing model is ill-advised as it gives publishers the right to prohibit use, even by authors themselves
· Institutional repositories (IRs) are part of the solution to the SC crisis; also demonstrate university’s value, quality to the world at largeIR=capture, collect, preserve

The ABC’s of Scholarly Communicaiton – Cat Saleeby McDowell, UNCG
· Why a crisis?:
o Loss of access to scholarly research literature due to rising prices and subsequent fewer subscriptions
o Reliance on core publications entrenched in tenure
o Impact factors emphasize the quality of the journal title, NOT the quality of the articles (assume articles must be good if in certain journals)
o US anti-trust laws lax on publishers, so lots of big fish eating little fish mergers
o Libraries committing more money to fewer publishers
· Open Access (OA)=immediate, free, online, unrestricted
· Catalog OA journals and include titles in subject guides one way to promote
· Although IRs are part of the answer, they should not be undertaken lightly
· Average startup cost of IRs $182,000, mean is $45,000; includes salary of staff, server cost, learning time, training, etc.
· 9 largest US IRs at institutions in the top 100 colleges/universities in the nation
· Only 13% of IRs’ faculty scholarship (which accounts for only 37% of total) is peer-reviewed
· Bring out the dollar signs when educating administrators
· Target “movers & shakers” among faculty, as well as those serving as editors
· “Sneak” into another meeting to sharing OA/IR information with faculty
· Have workshop on publishing as a whole, with part devoted to OA, for junior faculty, post docs, grad students
· Common resistance to OA/IR:
o Invested in traditional publishing model (tenure)
o Peer-review concerns
o Journal impact factors
o Disciplinary vs. institutional repositories (faculty more committed to subject than institution)
o Plagiarism
· Research showed that if IRs went live without 100-200 items, it was hard to grow and prove need

Implementing an Institutional Repository: Decisions and Experiences – Stephen Westman, UNCC
· Building an IR is a large-scale, complex project
· Define what you mean by “stewardship” of digital materials at the beginning
· Determine type of structure desired: document management system vs. scholarly repository
· Plan, plan, plan!
· Make sure you have explicit buy-in and commitment for ongoing support
· Do not underestimate importance of marketing and PR
· Keep project faculty-focused; let them feel ownership
· Tie to faculty benefits (what’s in it for them?):
o Stable, long-term access and preservation with permanent URL
o Increased circulation, hence increased citations (show how many times item has been downloaded) o Ability to do full text searching
· Have an elevator speech prepared
· Communicate early and often (should be two-way)
· Future migration costs need to be thought about, even thought this likely won’t be an issue in near future

Care about Your Copyrights – Peggy Hoon, NCSU
· Technologies have forced copyright onto center stage
· Does institution have policy that addresses copyright ownership? Most allow faculty to retain copyright
· Intellectual property (IP) is an individual’s most valuable asset; for researchers, this is what they live and train for
· Copyright holder is in the driver’s seat with respect to how work can be accessed and used
· Copyright transfers must be in writing and signed
· Copyright is actually a bundle of rights:
o Reproduction
o Modification
o Distribution
o Public performance
o Public display
o Public performance of sound recording by digital transmission
· If authors sign away all copyright, they will likely experience future limitations
· Authors can:
o Completely transfer copyright
o Transfer but retain some rights for self and/or institution
o Keep copyright and only license to other entity
· Advice has shifted from “keep your copyright” to “keep the rights you need, as many as you can, for as many people as you can”
o Less threatening for publishers
o Faculty not responsible for granting use permissions; publishers have copyright and therefore field such requests
· Don’t be afraid to negotiate – the publisher is obviously interested in the work

Panel Discussion – Rebecca Kemp, UNCW (moderator); Allan Scherlen, ASU; Evelyn Council, FSU; Kate McGraw, UNC; Kevin Smith, Duke; Peter Fritzler, UNCW
· Author addendum, even if pushed back, leave open possibility for negotiation
· Addendum at least get authors to understand copyright issues; way to get faculty – and publishers – thinking about copyright and future use
· UNC established OA fund to supply authors with money to pay publishing fees; not highly used but good marketing tool; excludes authors whose grant award provides publication fee coverage
· “Squeeky wheel”, “under the table” publishing agreements brought out by publishers when authors push for rights retention
· Grad students a better audience than faculty for OA, IR, copyright retention
· UNCW librarians targeted NIH researchers to jointly learn how PubMed Central works
· Easier inroads with individual, small groups, departmental groups of faculty
· Highlight early adopters
· Start at individual-level interest (appeal point)
· IR provides snapshot of what the institution can offer to the world
· Establish identity for IR – let this be a choice that is made, not one dictated by what happens as it evolves

Expanding publishing impact

Publishing choices: Know your rights and expand your impact!
April 25, 2007
UNC Health Sciences Library, Chapel Hill, NC
Guest speaker: Heather Joseph, Director, SPARC
Panelists: Sarah Michalak (moderator), Deborah Gerhardt, Julia Cleaver, Brad Hemminger

• Open Access (OA) should be understood as a vision, not a specific model
• Goal of OA is to lift barriers to both access and use
• In paper world, distribution was a value added service of journal publishers; not so in digital world
• Of great value to researchers is OA's advantage in research impact: wider audience=more impact
• OA not only about seeing and reading, but about using articles/research in new ways
• Number of OA journals (in DOAJ) rose 25% in 2006!
• When launching an institutional repository, must consider what an OA repository means for the campus community, institution...
• Copyright is "showered" on authors as they write and is theirs alone until they sign it away
• $19billion publishing industry in 2006
• Dissemination is becoming understood as an essential, inseparable process of research
• Copyright is a default in our government; even without filing for official registration, authors have very strong rights/protections, including the right to make derivatives
• T. Brody, Southampton Univ., has shown that self-archiving positively increases citation impact (50-250%)
• "You don't ask, you don't get": authors need to think about how they might want to use their work in the future and tell publishers upfront
• Although UNC (and several other institutions) created an institutional author addendum for authors to attach when signing publishing contracts to only share non-exclusive copy right with publishers, there is a risk that if the market is flooded with too many variations, publishers will reject them en masse, simply because it is too much work sifting through them all; a better route will likely be to either stipulate upfront what rights the author wishes to retain, or to use generic addendum such as that provided by SPARC or the Science Commons Scholar's Copyright Addendum Engine

From Soup to Nuts (Invited Paper)

From Soup to Nuts: Copyright, Social Networking and Electronic Surveillance
Tracy Mitrano, Director of IT Policy and of Computer Policy and Law Program, Cornell University

· Copyright law and technology out of sync with current business models and social norms

· Copyright is negatively impacting e-reserve materials; people are scared/confused about provision rights so they back off providing access; even if access is behind authentication, that doesn’t automatically protect against copyright violation; must adhere to TEACH Act

· Recommends creating e-reserves fair use checklist and faculty sign-off with input into course management systems; due diligence statements

· With regard to DMCA (Digital Millennium Copyright Act) violations, if the institution is merely a conduit (student uses personal computer connected to campus network to illegally procure/share content with an independent computer elsewhere on the internet), not required to act on DMCA notices

· Infringement violations being called piracy, theft is minimizing seriousness of infringement (min. $750 fine per incident; adds up quickly)

· Settlement letters placing institutions in pinched position when asked to forward letters to student violators; some institutions (including Cornell) forward to students believing knowledge of and accountability for such violations contributes to students’ moral/ethical development

· Has intellectual property become the business model instead of the product in the entertainment arena? (settlement letters perfect example)

· Higher ed institutions are likely being targeted for ISP-identified violations because the RIAA knows that we don’t have Congressional defenders to stop settlement letters/DMCA notices, and institutions actually care about students and missions for betterment of society

While the rest of her presentation on social networking and electronic surveillance was fascinating, it has very little applicability to our library, so I'm electing not to include my notes. If you'd like to read them, however, I'll be happy to share!