Tag Archives: copyright

Copyright vs innovation in online classrooms #theta2015

Copyright and compliance when the law can’t keep up: Issues with innovation in online classrooms (abstract)
Alison Makins

Some parts of copyright law are too narrow – eg “broadcast” in Aus defined as radio and TV and doesn’t cover iTunesU, Tumblr, Vine, etc etc etc. Some parts are too broad. Change in the law is slow! So copyright can be a huge barrier to innovation. However this shouldn’t hold us back.

Universities tend to end up on ends of spectrum:
Hyper-compliance <--------------------> Total disregard

Alison advocates:

  1. taking copyright out of the picture so people don’t have to think about it. Use open access material and just read the licenses which were designed for users, easier to understand. Sells OA to instructors by stressing flexibility. Copyright exceptions use if locked up in LMS, but no good if you want to be portable. Or often easier to create original content and suggest additional readings.
  2. managing the risk – Some questions are clear-cut; some aren’t. Hyper-compliance says don’t do it (depriving students); total disregard says go for it (possible legal risk) – so middle road of managing the risk.

Think about:

  • What’s the likelihood of consequences? Think: identity of rightsholder; nature of use; scope of use; profitability; mitigating steps – only require reasonable analysis. eg a photo taken by restauranteur, used in full, cited and linked to restaurant website, in a MOOC, clear not trying to profit as taken casually and not trying to profit.

    Secure it (lock it down)
    Clip it (crop it)
    Attribute it
    Put endusers on Notice (so students know what they should do about it
    And also provide a way for people to contact you if they want it taken down so they don’t have to resort to suing.

  • What’s the severity of consequences? Consider: nature of work (how much effort put in?); value of work (proprietary information? market?); damage your use will do to value; scope of use; nature of likely consequences (eg takedown notice – but unlikely if already over internet)

Gives power back to users and takes it away from lawyers. πŸ˜€

Encourages everyone to do their own risk assessment – not sustainable to have a single copyright officer deciding everything. Try to walk them through the process.

Most creators (except for scholarly publishers) are comfortable having content used in educational settings.

The confusing jargon of free

I’m constantly encountering confusion about whether something is in the public domain, or whether it’s open access. And it’s no wonder, because the terminology is inherently confusing.

If someone’s heard that material in the public domain is free for the taking, why shouldn’t they think that a blogpost or a tweeted photo β€” material on domains that are sometimes excruciatingly public β€” is included in that?

If publishers have heard about how great open access is, why shouldn’t they think that making some content openly accessible on their site is worthy of press releases vaunting how awesome they are?

(That one was a trick question. Publishers shouldn’t think that because it’s their job to be informed about this stuff. When I see a publisher talking about their “open access” site while their footer continues to be blazoned with “all rights reserved”, I don’t assume they just haven’t come across a proper definition before. I assume they’re wilfully taking advantage of the confusing terminology in order to intentionally deceive people while retaining plausible deniability, and they go on my list of Do Not Trust The Evil.)

The opposite of ‘public domain’ isn’t ‘private’; it’s ‘copyrighted’. This means:

  • Material created in the 19th century and earlier is mostly in the Public Domain (even if it’s in private ownership) because the copyright has expired.
  • Material created recently is generally not in the Public Domain (even if the copyright-holder has made it public by publishing it in a book, a newspaper, a webpage, a social media post, Times Square, and/or laser-writing on the moon) but is rather protected by copyright law. This means the copyright-holder β€” who is often but not always the author β€” holds the right to decide what other places the work can or can’t be published in.

The opposite of ‘open access’ isn’t ‘unaccessible’; it’s ‘all rights reserved’.

Something that’s unaccessible can’t be open access; this is true. But being accessible isn’t sufficient. Access has to be guaranteed, either by virtue of the material being in the public domain, or by means of the copyright-holder granting an appropriate license, aka permissions, to users of the material. This allows users to share/take over responsibility for making the material accessible if the copyright-holder can no longer, or no longer wants to, do it themselves.

This is abstract and therefore potentially confusing, so let’s look at a concrete example like Chris Hadfield’s cover of “Space Oddity”. Oh wait β€” we can’t look at it anymore, because while it was openly accessible for a year, it was never open access. David Bowie’s representatives gave permission for the song to be used for one year, so for one year the video was accessible. But no-one ever gave viewers permission to make and upload their own copies of it to guarantee perpetual access.

(Okay, so users have nevertheless made their own copies and uploaded them all over the place. This is because, firstly, the Internet is forever, and secondly, the video is fantastic. But every single one of these copies is illegal.)

People more familiar with the scholarly publishing landscape may notice I’m almost arguing that green open access and gold open access aren’t actually open access. And you know, I’m okay with saying that an open access article which disappears from the web because the only institutional repository allowed to store it goes down; or an open access journal which suddenly decides to shut all its previously accessible content behind a paywall β€” that these were never actually open access.

Open access means not just knowing that it’s accessible to everyone now, but knowing that it’s allowed to be accessible to everyone in the future too.

Customary practice when the law says ‘No’ #vala14 #s34

Tom Joyce Relying on customary practice when the law says ‘No’: justified, safe or simply ‘no go’

Copyright is a fundamentally flawed system – it will continue to disappoint. Level of protection tends to grow because it grows to protect the most valuable works. Australian Law Reform Commission has made a report on copyright – don’t know what Attorney-General will do about it. But doesn’t want to do anything to ‘damage industry’. Changing copyright comes with high political cost. IP obligations increasingly woven into trade agreements.

Norms vs law:
It took a quarter century for the law vs norm gap to be closed re time and format shifting. “There are risks associated with following a non-black letter law path, but those risks can be made manageably low.”

  • look at accepted (albeit evolving) norms
  • look for consonance between norms and evolving thinking
  • look at past behaviour of copyright owners as indicative of future behaviour
  • try to identify sector-wide approaches

‘Fairness’ is key. US has “fair use”, Australia/New Zealand have “fair dealing” exceptions but more restrictive and limited to categories eg ‘educational’. ALRC suggested potential listing of fair uses: research/study, criticism/review, parody/satire, reporting news, non-consumptive, private/domestic, quotation, education, public administration.

Seeking permission – engaging in diligent search but can’t find creator so go ahead anyway – is an evolving norm. Realistically you’ll only get 20% permission for works over 30 years old. “Copyright’s unpleasant family secret, which is neglect” – Treatment of orphan works is a stark failure.

Some organisations rely on takedown notices – throw everything up with a note “Contact us if you want to take it down” – but he doesn’t recommend this.

Q: If law changes here, whose law applies?
A: Works created elsewhere are protected here because of Berne Convention, but are protected under local jurisdiction/legislation.

My ideal copyright term

Once upon a time, the Statute of Anne provided for a fixed copyright term of 14 years, extensible (if the copyright holder was still alive) for an additional term of 14 years.

Since then, copyright terms have ballooned to the point where:

  • in the US, nothing now in copyright will enter the public domain until 2019;
  • outside the US, HathiTrust, JSTOR and other content providers aren’t willing to give us access to material published after ~1872 (In New Zealand, 1872 material would only still be in copyright if an author who published when they were 20 lived to over 100);
  • we’re wondering whether the secret Trans-Pacific Partnership negotiations will make things even worse.

But how do you fight the Mickey Mouse Protection Act?

What I’d love to see is to go back to a copyright term of 14 years, but allow it to be renewed for additional terms of 14 years as many times as the copyright holder wants, as long as the copyright holder applies for the renewal before the expiry of the 14 years. (Maybe throw in a small renewal fee – say, the cost to the consumer of one full-priced copy of the work in question.) This would:

  • Get a whole heap of stuff into the public domain where it belongs;
  • Remove all incentive for large companies to repeatedly lobby for law changes;
  • Deal once and for all with the orphan works problem.

So Mickey Mouse would be in copyright forever; I don’t care, let them protect themselves into obscurity. The important thing is that it would stop them forcing the rest of us to starve the public domain as well.

How US intellectual property laws affect the rest of us, and what we can do about it

How can it affect us?
Imagine a New Zealand website which sells (eg Fishpond) or gives away (eg NZETC – Eric Hellman discusses Project Gutenberg Australia) ebooks of material in the public domain. Now imagine that a law in the US allows for this site not only to be blocked from the US, but also to be removed from search engine results (search engines widely used throughout the world) and blocked from receiving any revenue from the US (including revenue for legitimate sales of in-copyright books).

Wait, what?
New Zealand’s copyright law puts books in the public domain 50 years after the death of the author (which is bad enough – I’m a fan of our original copyright period of 28 years OR life, whichever was longest); US copyright law currently means any book published after 1923 won’t get into the public domain until 2019, if ever (see also the Mickey Mouse Protection Act). The difference between the two means there’s a whole bunch of books which are legal for anyone to freely distribute in New Zealand, but illegal to distribute without permission from the rights-holder in the US. Currently we just cope with the disparity. I mean, the authors have been dead for at least 50 years anyway. However…

What are the proposed US laws?
The proposed Stop Online Piracy Act (SOPA) is written such that if any foreign site that is “US-directed” (defined as any site that doesn’t actively prevent people in the US from accessing it) distributes anything against US law, then the US can hit it with a bunch of sanctions. Theoretically these sanctions are probably intended to just prevent the site trading with people in the US; in practice, they’d prevent people in most of the world being able to easily access or use the site.

I’m not sure of the relationship of SOPA to the proposed Protect IP Act (PIPA), but that seems to have similar intentions. “Don’t Break the Internet” at the Stanford Law Review Online discusses the potential effects of these two bills.

If that’s not bad enough, there’s the proposed Research Works Act (RWA) which is designed to make open access mandates illegal – and thereby cut down on the amount of open access material available to researchers worldwide. (The rationale is that private publishers publish it, so it shouldn’t be free to the public. But if the public is funding the research grants and paying the salaries of the researchers and the peer reviewers then why it shouldn’t be locked behind a paywall benefitting only the private publisher, either.) Here’s a thorough roundup of blogposts on RWA.

Who would want to do such a thing?
The Association of American Publishers’ Professional and Scholarly Publishing put out a press release in support of the RWA; here’s a list of AAP/PSP members. One of the sponsors of RWA has received campaign contributions from Elsevier. So has the other.

Elsevier is also on the List of SOPA supporters (pdf) along with quite a lot of other publishers (academic and fiction).

What can we do about it?
If we voted in the US we could contact our representatives and ask them to vote against these bills. But they probably don’t care much what foreigners think.

If this were really a free market we libraries could say “Nah, we’re not going to buy from [Elsevier] this year, we’ll give our money to some other science-publishing company.” But publishers have a monopoly on their titles, and academics would generally have words to say if we didn’t provide access to the Journal of Important Research in My Field.

But publishers don’t only rely on libraries’ purchasing money. They also rely on researchers (including non-US researchers, and including library researchers) providing them free articles to publish and providing them free labour in the form of peer review. So what any researcher can do is withdraw that free labour. And while we librarians are encouraging other researchers to take a stand, we can put our money where our mouth is.

For the record, I personally am not going to publish anything unless either a) I get to CC-license it or at least put a copy in my institution’s open access repository; or b) I get paid for it (unlikely in the scholarly publishing world, but relevant for fiction). Tenure’s not an issue for me so I demand either fame or fortune before I give my work away.

(I’ll create it for fun. But to give it away I require something more.)

Copyright vs community in the age of computer networks

Richard Stallman (homepage)
abstract (pdf)

Brenda Chawner, chair, says Stallman is “The most influential people no-one has ever heard of.”

Talking about whether the idea of free software extends to other works. User deserves:

  • Freedom 0 – to run the program
  • 1 – to look at source code, verify what it’s doing, fix it to make it work as you need
  • 2 – to help friends by sharing software with them
  • 3 – to help community by publishing changes to software

If one of these freedoms is missing then it’s proprietary. This keeps users divided and helpless.

Text isn’t the same exactly as software – no source code. So mostly affected by copyright. This has developed along with copying technology. Originally had no economy of scale – ten copies took 10 times as long as 1 copy. Copies were made in a decentralised manner. Anyone who had a copy and wanted to copy it could. –Unless the local ruler didn’t like the book, “but that’s not copyright, it’s something closely related, which is censorship”.

Printing press has economy of scale. Took time to set up, required money and skill, but once it was set up you could produce many many copies. So copies were made in a centralised manner. And this is when copyright began. In England it began as a method of censorship in 1500s (originally to censor Protestants, then to censor Catholics). You’d apply to crown and get perpetual monopoly to publish a title. This was abolished, and in the 1680s reestablished as a temporary monopoly for the author of 14 years. It was a means of promoting writing.

When US Constitution was written they decided that Congress could optionally adopt a copyright law in order to promote progress, and it must last a limited time.
In time of digital technology, one-off copying has benefitted so we’re back almost to the time of decentralised copy-making. Copyright is no longer adapted to the technology. It’s now a restriction on the public, controlled by publishers in the name of authors. “It’s no longer easy to enforce, no longer uncontroversial, and no longer beneficial.”

Copyright is supposed to encourage authors to write more – but how does extending copyright in 1998 encourage the authors of the 1920s to write more? And the value of 20 years of copyright 70 years in our future is too small to actually change anyone’s actions. The real reason of the law is that certain companies have lucrative monopolies and want them to continue.

Originally copyright regulated certain activities while others were simply allowed. Now, companies want to set up a pay-per-universe by turning our computers against us using DRM. First by technology, until people figured out the formats and published free software – then by law, by criminalising this software. Then by technology again. Stallman says that a conspiracy to control our computers in this way should be prosecuted to price-fix.

AACS was broken and the key was published (illegally) by being included in a photo with cute puppies so it got shared faster than it could be deleted. (cf also this story)

Blue Ray. “Corrupt disks” will play in audio players but not on a computer. Sony discs install a program to take control of your computer, to hide itself and resist deletion – these are crimes. Also included GNU code which was on a GNU copy-left license – which Sony didn’t comply with. People sued Sony but focused on these specific crimes instead of on their evil purpose.

Fortunately music DRM is receding. But we’re seeing a renewed effort to impose DRM on books. First by taking away freedoms from ebooks; second by convincing people to switch from print books to ebooks.

Publisher wanted to get Stallman’s biography as an ebook to promote their line. He said only if it’s not encrypted. They wouldn’t do it. Eventually he found a publisher which would.

He thinks probably the reason there’s so many stories about electronic ink is companies want us to get excited about ebook readers – which have DRM, backdoors, spyware. Eg Amazon knows everything you’ve bought on the Kindle. You can’t lend it, can’t sell it to a used bookstore, and Amazon can delete your book (which they’ve done with 1984).

“They want to create a world where nobody lends books to anybody anymore.”

Encourages us to spread the message that by using these devices, “Other readers will no longer be your friend” because we’ll be acting like a jerk by having them in a non-sharable form.

He’s happy with an ebook reader which runs free software, no DRM, doesn’t have backdoors, restrict your files. It’s possible to have such a thing. But the companies pushing ebooks “are doing it to attack our freedom and we mustn’t stand for that.”

Stallman says:

  • Copyright should last 10 years from date of publication. The publication cycle has got shorter and shorter – almost all books are remaindered in 2 years and out of print in 3. (Was once on a panel with a fantasy author who said 10 years was intolerable – it should be 5! He wanted to distribute his own book.)
  • Functional works (software, recipes, educational, reference) should be free – these are necessary for your life. (Imagine if the government tried to stamp out “recipe piracy”. Points out that attacking ships is bad, sharing with people is good, so should reject propoaganda use of term ‘piracy’.) Works will still get made – cf recipes, Wikipedia, etc.
  • Works about what people thought – eg diaries, letters, memoirs – should allow noncommercial redistribution of exact copies.
  • After 10 years goes into public domain and you can publish your modifications.
  • Remixing snippets from many places should be legal outright.
  • Sharing copies on the internet should be legal.

“To attack sharing is to attack society.”

Also proposes:

  • Distribute tax revenue directly to artists to promote the arts. This means not in linear proportion to popularity. Based on popularity, yes (eg through polling) and then take the cube root – so 1000x more popular would get 10x as much money.
  • Voluntary payments – micropayments so you could send a dollar anonymously to the artist of the song you’re listening to. You could get a certificate of having supported your favourite artists as encouragement. Make friendly advertising campaigns encouraging “push the button”. (Me: make it a big red button and everyone will want to push it!) Need a good system.

Links of interest 29/5/09 (with added cat)

Mosman Library, NSW, is running a “Mosman Library vs That Search Engine” challenge where the library e-collection is pitted against Google and free e-resources. Each librarian has 45 minutes to research, then 45 minutes to write up their search strategy and answer; then the public can vote on who’s given the best answers (and explain why they made that choice). So far they’re on day 4 of 5 rounds.

S92A of the Copyright Act is coming back – the government will begin a review to amend the controversial section that was repealed earlier this year thanks to Creative Freedom NZ protests.

Mary Ellen Bates writes about resisting budget cuts:

“the next time the library budget was cut, the first thing I eliminated was the popular daily news digest. I announced to all the readers why it was being “suspended”, and asked for their comments on whether this service should be re-funded. Sure enough, it didn’t take long before I had the budget restored. It’s not a pretty process, but neither is eating into the behind-the-scenes budget and not allowing library clients to see the impact of the lost funding.”

Data.gov has been launched in the USA “to increase public access to high value, machine readable datasets generated by the Executive Branch of the Federal Government.”

VUW library and student association are holding a joint fundraiser for the library cat, which underwent expensive surgery for diabetes.

Non-English blog roundup #5 (French)

Still catching up, so pulling together a bunch of French content this time:

Bernard Rentier writes “A university which wants to be on the cutting edge of information as a communication tool cannot be unfamiliar with these new practices. It must even use them, not to “reform” them, even less to control them, these two objectives not being acceptable, but if it’s a tool frequently used by many students, the Institution must be able to adopt this new concept and make itself a usage of it that is “sympathetic” and perceived as positive by everyone.

Risu suggests an easy method of increasing your library’s visibility: enter it into Google Business Center with contact details, website, description, photos and videos, opening hours etc. “The whole thing takes 5 minutes and it’s free.”

Thomas on Vagabondages talks about “Lottobook”, a game where every participant pledges to send a book to the winner. The winner is drawn and receives n-1 books, while a runner-up receives 1 book (from the winner) as a consolation prize and so even the winner doesn’t know they’ve won until all the books arrive in the mail.

A meme being passed on via Marlene’s Corner: “to give you the contents of my day as a 2.0 librarian on Monday”.

In Bibliobsession:

On DLog, Dominique writes about The two branches of the library:

Let’s not confuse

  • the physical item;
  • a particular edition of which the physical item is a clone among clones;
  • the work, which is immaterial


I draw from this a new conception of conservation: no longer only for the future or for researchers, but also for the public, here and now.”

And a new report has been published, Report on the digital book (pdf) by Bruno Patino, 30 June 2008. Very roughly, from the executive summary:

The entrance into the digital age seems to be happening later for the book than for other cultural industries. However, many publishing sectors such as professional, practice or reference books are already largely digitised. This development, so far, has challenged neither the commercial model, nor relations with authors, nor the customs of readers. But what would happen if digitisation were to accelerate, even to take over? Such a hypothesis, even if it cannot be predicted with certainty, still merits that the key players in the sector prepare for it, bearing in mind the very important effects that it could lead to on the precarious equilibrium of the book industry.

A particular vigilance should especially be brought to a possible new competition between the rights holders (authors and publishers), whose remuneration of their creations should be preserved and increased, and the access and network holders, who don’t necessarily have any interest in increasing the intellectual property rights.

In this context, two elements are essential: intellectual property must remain the cornerstone of publishing, and publishers must retain a central role in determining price.

The committee therefore recommends a series of measures organised into four actions:

  1. Promote an attractive legal offer. [eg look at interoperability of digital content – formats as much as DRM; interoperability of existing metadata; pursue the policy of supporting digital books[
  2. Defend intellectual property. [don’t modify intellectual property law, which can accomodate digitisation; open inter-professional discussions about the rights of authors]
  3. Put in place provisions allowing rights holders to have a central role in determining prices.
  4. Conduct an active policy with respect to community institutions. [Establish a bureau to promote intellectual property-related policy; request a lower TVA tax for digital cultural content.]

Discussion in various venues has ensued and seems likely to continue apace….