Abstract
Kevin Smith, Director of Scholarly Communications at Duke University, mapped out a set of best practices to help North American Serials Interest Group attendees determine reasonable, responsible actions working within copyright while avoiding lawsuits or choosing not to do something simply because “we don't know” if that use is permissible. The U.S. Copyright Act of 1976 has not kept pace with advances in technology, creating a whole new set of concerns as to what constitutes fair use for libraries. Smith reviews the fair use analysis for four of the eight principles identified in the Code of Best Practices in Fair Use for Academic and Research Libraries and concludes with his own set of solutions to end the conflict: stop giving up copyright for scholarly works; help universities develop new promotion and tenure procedures, especially for digital scholarship; and publish in open access venues or retain rights and self-archive.
INTRODUCTION
My talk today is about copyright in a digital age, conflict, risk, and reward. Until recently libraries did not worry about copyright; the rules were pretty clear and the ways we functioned were pretty much anticipated and approved of in the U.S. copyright laws. With several high-profile lawsuits against libraries as backdrop, my intent is to offer a vision of what we can accomplish in libraries working within the boundaries of copyright, while avoiding the “chilling effect” of potential litigation that prevents us from doing things we ought to be doing simply because “we don't know” if the use is permissible. I want to help librarians better understand risk and reward analysis and how to make decisions that are reasonable and responsible yet not overly self-censoring.
LIBRARIES AND LAWSUITS
In the past—think print and photocopy machines—the rules for fair use were pretty clear and commonly understood. U.S. copyright law defined the space libraries operated in; unfortunately, the law has not kept up with the changes electronic information has brought about. That said, libraries and librarians need not stop providing traditional services such as interlibrary loan or course reserves. Fair use has not gone away!
I am going to take a relatively high-level approach to these concepts; my talk will not be a crash course in copyright. Being sued is a relatively new phenomenon for libraries, but there have always been lawsuits when new technology is introduced. For example, there were lawsuits against the player piano, radio, audio cassette tape, and video recorders. Litigation is the way the law develops; we are a common law country (although less and less in a lot of ways). Because copyright law has not kept up with the changes in technology, court cases are the way we learn what is or is not permissible. Being sued can actually be a good thing because of what we can learn from the outcome. Litigation is also a risk for both sides. Forgive the pun, but it does serve as a sort of “discovery” process. When rulings are issued, we discover how the law will look at a particular set of activities; especially in copyright cases where the law is intentionally vague and uncertain.
Three major lawsuits are currently underway against libraries. The first is against Georgia State regarding e-reserves (Cambridge University Press v. Patton). While a ruling has been issued, there is still a good chance of appeal, so this case is not over yet. The ruling has been mostly favorable to libraries; however, we need to reserve final judgment until we see what remedy is ordered by the court. The second one is the case going forward against UCLA over streamed digital video. This case has already been dismissed once because of poor procedural posture; it might be dismissed again. The third one is against the HathiTrust and five of its university partners for distribution of digital scans and plans for limited distribution of orphan works through libraries. This case might resolve on technical issues or it could settle. The resolution of these cases may or may not add to our understanding of library practice regarding copyright in today's digital age. Meanwhile we should not put our professional activities on hold while we wait for these cases to be resolved. We still have to make reasonable and responsible decisions about library practice as we go about our regular activities.
THE FAIR USE DEFENSE
In all three of these cases, the defense is fair use. Fair use is the most significant of the exceptions to copyright law in the United States. Fair use is indefinite, vague, deliberately flexible, deliberately subjective, and intended to apply in different situations. Therefore we never know for certain if an activity is absolutely fair use until the Supreme Court rules. We always have to evaluate risk, that is, making a judgment about how likely is it that what we are doing is an infringement of copyright. Fair use is an analysis of that risk, and we have to decide how comfortable we are taking this particular risk. Fair use tells us to balance four factors identified in Section 107 of the U.S. Copyright Act: (1) what is the nature of the use, (2) the nature of work used, (3) the extent of the use, and (4) its economic effect. The factors encourage us to look at the particular circumstances of a specific situation and make some decisions about risk. Some of you may be aware that the Authors Guild asked the court in the HathiTrust case to rule that libraries may not raise fair use as a defense. Their argument is that Section 108 of the U.S. Copyright Act is the entire scope of the exceptions to copyright for libraries. This argument is a bit of a head scratcher because Section 108 contains language stating that nothing in this section shall affect the right of fair use as provided by Section 107. The Authors Guild, of course, makes some clever arguments in favor of its position. Why would they want to take such a seemingly weak position? Because fair use is an immensely powerful right, so powerful that large content owners are frightened of it, particularly in the digital age. The Library Copyright Alliance has filed a brief against the Authors Guild motion. The Alliance went through the Library of Congress’ (LC) website and listed all the instances where LC is sharing information based on fair use. If the Authors Guild motion is upheld, then LC would be a serial infringer!
Libraries deal with risk all the time. There might be a coffee spill in the library, or a new employee might not work out as hoped, or there might be a case of harassment at the circulation desk; yet we have policies and procedures in place to deal readily with these circumstances when they occur. We do not forbid our users from entering our buildings, stop hiring employees, and so forth because we are afraid of what might happen. Copyright should not be treated any differently, but most libraries back away in fear of running the risk of a lawsuit. Meanwhile I would counter that doing nothing is not a responsible decision. The flip side of every risk analysis is what is the risk of not doing something, or what reward do we forgo? Remember that the flip side of risk is reward. A lot of the choices libraries make that involve copyright impact our ability to teach and serve our patrons. If we fail to perform these core functions, we and our patrons miss out on important rewards. To help analyze this risk or reward balance I recommend reading the recently released Code of Best Practices in Fair Use for Academic and Research Libraries, henceforth referred to as the Code of Best Practices.Footnote 1 While primarily intended for academic and research libraries, much of it is still quite applicable in other types of libraries. The Code of Best Practices is not a set of bright line rules (such as the posted speed limit which you are either over or not) as many people seem to think, instead it is a set of principles and limitations to be considered together to help libraries make a fair use analysis. Each situation needs to be examined on its own merits and the Code of Best Practices helps guide the process of thinking through the facts of a particular situation. Fair use is ultimately the practical application of the kinds of thinking processes that fair use analysis encourages. How do the four factors apply in this particular situation? In each case the individual circumstances of the exact thing that you want to do need to be examined.
A comment came from the audience that no library wants to be “the one” that ruins it for everybody, that is, the precedent setting case that takes away fair use rights. However, I should point out that not all cases set precedent. The decision in the Georgia State case is a 350-page ruling that is longer than most issued by the Supreme Court, but only a ruling from the Supreme Court is binding in this country. At present, it is just a district court opinion, which is binding only to the parties in the case. Such lower court decisions become a data point or a consideration in future analysis. I can understand why no one is eager to be sued over copyright infringement because the potential for damages is pretty steep—$150,000 per act of infringement. However, there is a provision in the law that says if you are an employee of a non-profit educational institution or library and you make a good faith fair use decision and are subsequently found to be wrong, you cannot be subject to statutory damages, only actual damages. In the Georgia State case the judge estimated the actual damages to be about $750, while the plaintiffs’ costs to bring the case are estimated to be a couple million dollars.
TRANSFORMATIVE USE
For about the past thirty years the key question has been if the use is transformative. Previously transformation was not considered to be a significant factor, and it is quite possible that it will lose its significance thirty years into the future. The law asks us to balance the four factors, but an article in the Harvard Law Review by Pierre N. Leval, an influential federal judge, argued that the transformativeness of a work, as discussed in the first fair use factor, is the most critical element of the fair use analysis.Footnote 2 He indicated that he made his decisions on fair use based on examining whether the new use transformed the old use in such a way that the purpose was different and does not compete in the market for the original. The Supreme Court adopted this position in the case over the song “Oh, Pretty Woman.” Luther Campbell, lead singer of 2 Live Crew, sought permission to use the song for a parody and was denied. He used it anyway and was sued. The case was heard before the Supreme Court who used the transformative use factor to rule in favor of 2 Live Crew, as well as determining that the parody version was not competitive in the market.Footnote 3 I think we would all agree that the two versions appeal to vastly different audiences. Since that ruling, the courts have been asking two questions: does the use transform the original in some significant way and is the amount used appropriate to that transformational purpose instead of the four factors listed in the law? That is a big change in legal thinking. Prior to the “Oh, Pretty Woman” case most courts believed that the most significant factor was the impact on the market—was the use hurting sales or negatively impacting a licensing market? Now the most important factor is the first one, the purpose and character of the use and whether the use is transformative. However, transformative is a difficult category to define. Copyright owners have exclusive rights over derivative works, but what is the difference between derivative and transformative? We have not gotten a bright line rule to make such a determination, but rather a different subjective analysis.
The Code of Best Practices asserts that each of the eight activities it addresses is transformative and therefore permissible under fair use. However, that argument may not be persuasive to all readers. Transformative use has become so important that many librarians believe it is the only way to claim fair use. Not all fair use, however, is transformative. In the Georgia State case, Judge Evans explicitly ruled that e-reserves and excerpts in course management systems were not transformative, but were still permissible under fair use in most instances. She used the “Oh, Pretty Woman” ruling (Campbell v. Acuff-Rose) as the basis for her decision. In that ruling the Supreme Court said not all fair use had to be transformative and gave making multiple copies for teaching purposes as the classic example of such non-transformative fair use. Nonetheless transformative analysis is extremely important for many of the activities libraries and educational institutions engage in. For example, students may be assigned projects to take material from the culture at large and create something new, like a video public service announcement. I believe such use is classic transformative fair use. In this analysis there is a lot of room for creative teaching, displays of special collections (new context for historical purposes). On college campuses and libraries we should give ourselves more permission to do things that are sound teaching and research tools, not let copyright law prevent us from doing it. We can still benefit from this particular analysis.
PRINCIPLES IN THE CODE OF BEST PRACTICES
Before I address some of the principles described in the Code of Best Practices, I should define what best practices are. They are not the same as guidelines. You are probably familiar with the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals (endorsed by Congress in 1976), Guidelines for Off-Air Taping for Educational Purposes (reported in the Congressional Record, October 14, 1984), and the Fair Use Guidelines for Educational Multimedia (developed during the Conference on Fair Use [CONFU] process and published by the Educational Multimedia Fair Use Guidelines Development Committee, July 17, 1996). These guidelines are unique in that they are negotiated settlements. Copyright holders and potential users came together to define a minimum set of standards where they concurred on what constituted fair use. The Code of Best Practices was done very differently. There were no negotiations with rights holders. It represents a broad consensus among academic librarians about what practices they believe are fair use, and the limitations that make those practices fair use. It describes principles, limitations, and enhancements intended to enable libraries to employ their fair use rights in academic and research libraries. Using the Code of Best Practices is not a guarantee you will not be sued, nor should it be construed as offering legal advice. It is simply a statement of what your colleagues believe are common practices that should be covered by fair use. There is no telling if courts will take these arguments into account if conflicts occur. Overall, the Code of Best Practices is a template for thinking about particular activities, not a set of negotiated guidelines.
In the time remaining, I will take a look at four of the eight principles and their limitations set forth in the Code of Best Practices. I want to identify what libraries can and should be doing without worrying. Much is not so controversial. The first principle I will mention (number five in the code) is that it is fair use to facilitate access by reproducing material for the disabled. The National Federation for the Blind has intervened in the HathiTrust case and asked to be a defendant. They believe fair use for libraries is critically important to serve the needs of the disabled by expediting reading for the blind, comprehension for the dyslexic, and access for those with motor disabilities, for example. They do not want libraries’ use limited only to the Section 108 exceptions or their own use limited to the provisions listed in Section 121. Section 121 of the Copyright Act authorizes reproduction of materials to meet the needs of the disabled under some circumstances. There is controversy over the scope of these provisions, and the Federation would like to be able to exploit the opportunities today's technological advances afford to expedite reading for the blind, access for those with motor disabilities, and other services for the disabled. The Code of Best Practices asserts a broad fair use right to make copies for the disabled. It lists very few limitations, such as coordinating with the campus disability office, placing limitations on time (available only while enrolled), and imposes some technical protection measures (gated access to authenticate). The risk in this case is very small; public sentiment would likely be against anyone bringing a lawsuit against libraries accommodating the needs of disabled patrons. The benefit to society is very great, and libraries should be very, very willing to engage in this behavior.
The next principle I want to talk about is fair use to facilitate text-mining (number seven in the code). Recently the Chronicle of Higher Education Footnote 4 published an article describing the saga of a researcher, Heather Piwowar, at the University of British Columbia to gain access to materials from Elsevier to search across huge corpuses of materials to look at how ideas are treated across different disciplines. Transaction costs of obtaining permission were pretty high due to protracted negotiations because this was new ground for Elsevier. One of the purposes of fair use is to reduce transaction costs and make the dissemination of ideas and progress of science more efficient. Exercising fair use rights for “non-consumptive research” is efficient, reduces transaction costs, and facilitates an activity that is almost certainly transformative and does not pose a threat to any existing market. In such cases, libraries ought to be willing to facilitate this type of activity.
A more controversial principle talks about fair use for materials in institutional repositories (number six in the code). Sixty percent of my working time is spent answering questions about copyright law, publishing, and licensing for faculty and graduate students (not many undergraduates) on campus. Most questions concern whether permission is needed to use a graph, figure, or chart from a previously published source in an article or dissertation currently being written because the publisher insists permission is required. Because graduate students are required to deposit dissertations in our institutional repository, and more and more campuses encourage or require deposit of faculty publications in the institutional repository, how worried should we be about a copyright infringement? These are very common questions that probe at the heart of fair use; they are just directed at a different type of material. Quoting two sentences from a book has always been allowed (with proper attribution). When you take a small amount of someone else's work and incorporate it to make a new argument, that's a transformative use. There is no difference with graphs or charts or images. However, even though you are using an entire image, it is still a quotation and still fundamentally transformative. But the amount used is part of the fair use analysis. When individual images become building blocks for a new argument I say it is clearly transformative fair use. The Code of Best Practices says it is fair use to include a quote, image, or a chart in dissertations and articles and then additionally fair use to share those publications in an institutional repository or other kind of online access. Fair use facilitates transformative uses through the process of technological change. We are so accustomed to quoting text that we do not recognize that fair use is making the leap with us to include images, music, and video that is incorporated into a new work. The more important the particular work is to your argument, the more likely you can make a fair use argument.
The most controversial principle is the first one in the Code of Best Practices that asserts that it is fair use, with certain limitations, to distribute digital teaching materials to students. It relies on limited and secure access, educational purpose, and appropriate brevity of selections to justify this position. In the Georgia State case, the plaintiffs were seeking the right analogy to apply to make their case. The publishers felt that prior print course pack cases involving commercial copy shops were the right precedents. However, Judge Evans rejected those analogies because no commercial copy shop was involved. But the quest to find the right analogy or precedent continues. It was also important to determine if there is a relatively efficient market for permissions. If not, then there is a strong case for not finding infringement. The case specified ninety-nine excerpts of which twenty-five were withdrawn by the publishers after the end of the trial. The judge ruled that only five were infringements, and seventy-four were not. Even though Judge Evans rejected the transformative argument, she still ruled in favor of fair use due to the limited amount used and lack of market for permissions. What can we learn from this decision? Not all that much as we are still waiting to see what sort of remedy, if any, will be ordered. It is worth noting the relation of the ruling to the Code of Best Practices because the judge took a stricter position on the amount of a work that could be used, specifically no more than 10% or a single chapter whichever is less. She also considered the lack of an efficient market for licenses as support for a fair use defense. Both the code and Judge Evans’ decision provide us with a framework for thinking, not the final word.
In the UCLA case over the streaming of digital video, the licensing market is less well developed. Clips are probably permissible based on the Technology, Education and Copyright Harmonization Act of 2002 (also known as the TEACH Act). Does the Georgia State ruling tell us we can never use an entire work? Not necessarily. Fair use has been found to apply with the use of an entire work, for example, in a case over the reproduction of seven posters of Grateful Dead incorporated into a history of the band, The Illustrated Trip published by Dorling Kindersley.Footnote 5 The judges found the use of the images in the book to be fair use because of the persuasive evidence of transformative use. Even though the posters were used in their entirety, they were significantly reduced in size and were arranged in a timeline with additional content added. There were other aspects of the use that met all four fair use factors so the courts found in favor of the publisher. There is no way to know how the courts will rule in the UCLA case, but because of the poor posture of the lawsuit, we may not learn anything helpful. I believe the HathiTrust orphan works case makes the strongest fair use argument of any of these three cases. The oldest justification for fair use is market failure (high transaction costs). Orphan works would appear to meet this test because we cannot readily locate the copyright holder to ask permission. In general, I would advise all libraries to review the Code of Best Practices, the history of copyright litigation, and the circumstances of the particular situation as the basis for us to make an educated, informed decision regarding fair use.
SEEKING A SOLUTION
What can be done to stop these conflicts? I believe the solution is for the academic authors to stop giving away their copyrights, for universities to develop new promotion and tenure requirements, as well as change the structure for evaluating the progress and contribution of academics. Instead of relying entirely on the brand name of the publisher as an indicator of quality (consider the imprimatur of Cell, Science, and Nature for example), academics should develop a more granular system of evaluation. What we are doing now is an intellectual property trade. We trade copyright for trademark. The author's rights movement will not be enough to achieve a solution. I anticipate that new scholarship, this is digital scholarship that does not lend itself to traditional publication or application of a publisher's brand name, will move us forward. In conclusion, not giving away copyright and moving toward a more granular evaluation system for promotion and tenure are the main steps toward achieving a real solution.
I want to leave you with a final word of encouragement to think carefully about fair use, to not be afraid to make use of it, and to make good faith, responsible fair use decisions.
QUESTIONS FROM THE AUDIENCE
A member of the audience thought it would be helpful to explain how copyright is different than other legal issues such as slip and fall situations. University counsel is accustomed to dealing with slip and fall issues or accommodations for disabilities because these are campus-wide issues, whereas copyright is seen as a library issue. I think we need more awareness of why copyright and fair use are important for the whole campus.
This is an excellent point. Clients need to educate lawyers about their business. Lawyers do not understand what libraries are about and what would be lost without the library's contribution to the academic enterprise. Good lawyers try to learn their client's business before they make their decisions. Gently explain why the issue is important to the library. Remind counsel that the library is a fundamental part of the pedagogical process.
Could you offer some advice as to the most effective way to make the case for the promotion and tenure process to value open access scholarship?
I believe the case will be made by the faculty members, not librarians. They will be the ones to change the promotion and tenure standards. More and more are publishing in open access journals, particularly in the biomedical field. Faculty will assert that publications such as PLoS One are just as rigorously peer reviewed as Nature, and their editorial boards are just as prestigious. Faculty will prove that open access does not mean bad peer review, and insist that new kinds of work not subject to traditional publication standards are just as valid as traditional print publication. For example, a faculty member is making digital models of the ancient kingdom of Sicily. She is evaluating evidence and making decisions based on that evidence to create an image of what she believes the kingdom looked like. Her final product cannot be published in a traditional journal. Plus she received a nice grant to do the work. Her model should be regarded as scholarship the same as in a published article. Faculty will drive the change in promotion and tenure.
Librarians who are faculty are doubly involved, both as authors being asked to give up our copyright, and librarians trying to promote new scholarship. Academic librarians who are personally impacted in this way should try to work with other faculty and administration to make those changes and raise awareness of these issues.
We, as a profession, should be taking the lead in creating open access journals, because it corresponds to one of our fundamental values as a profession to make materials accessible to our patrons in every way we can. The Modern Language Association is leading the way in the humanities and social sciences by publishing their “Guidelines for Evaluating Work in Digital Humanities and Digital Media” in April 2012.Footnote 6
Notes
1. Association for Research Libraries, et al., Code of Best Practices in Fair Use for Academic and Research Libraries (January 2012), http://www.arl.org/pp/ppcopyright/codefairuse/index.shtml (accessed July 10, 2012).
2. Pierre N. Leval, “Toward a Fair use Standard,” Harvard Law Review 103 (1990): 1105–1136; Index to Legal Periodicals and Books (H.W. Wilson), EBSCOhost, doi: 10.2307/1341457, http://search.ebscohost.com/login.aspx?direct=true&db=lpb&AN=502227677&site=ehost-live&scope=site (accessed July 10, 2012).
3. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
4. Jennifer Howard, “Elsevier Experiments with Allowing ‘Text Mining’ of Its Journals,” Chronicle of Higher Education (May 6, 2012), http://chronicle.com/article/Hot-Type-Elsevier-Experiments/131789/ (accessed July 11, 2012).
5. Bill Graham Archives v. Dorling Kindersley Ltd., No. 05-2514-cv, United States Court of Appeals (2nd Circuit, 2006).
6. “Guidelines for Evaluating Work in Digital Humanities and Digital Media,” April 2012, http://www.mla.org/guidelines_evaluation_digital/ (accessed July 11, 2012).