Meera Nair

no permission needed

In Case Reviews, Posts on September 26, 2015 at 7:08 am

On 18 September 2015, MIT Libraries issued an announcement: “Using figures in new scholarly articles just got easier.”

The article elaborates, through contracts signed with a number of publishers, MIT authors may use “with appropriate credit, figures, tables and brief excerpts … in the Authorized User’s own scientific, scholarly and educational works.”

The list of publishers reads like a Debrett’s of publishing: Sage, Springer, Taylor & Francis, Wiley and Elsevier. While to some this may be good news, it is disturbing if it means that fair use has been all but formally renounced by prominent academic publishers. To emphasize that, due to contracts agreed upon, permission is no longer needed only reinforces the belief/expectation that permission was needed to begin with.

Even for those MIT authors/authorized users who may avail themselves of those contracts, if desired content is depicted as belonging to another copyright owner, then “permission should be sought.” And what of non-MIT authors?

Entirely missing from the announcement is any recognition and support of exceptions to copyright. True, this is how many publishers operate. But that academic publishers are so unwilling to engage fulsomely with exceptions is more than disappointing. It undercuts the legitimacy of exceptions even though academic publication has almost an endemic claim to unauthorized use as per exceptions provided by law.

Since this pertains to the United States, fair use is the exception of note. Its absence is doubly-perplexing given that fair use has been doing quite well by American courts (for instance, see here) since descending to its nadir toward the end of the twentieth century.

To that point: one day before MIT’s announcement, the United States Court of Appeals for the Eleventh Circuit offered a pertinent reminder that fair use protects unauthorized use of imagery even in matters less noble than those associated to scholarly work. The dispute centred upon an unflattering photograph, used by a third party via a number of blogposts, to lampoon and criticize the person depicted, and the efforts of that person to suppress those uses. Detailed accounts are provided by professor of law Eric Goldman (writing for Forbes) and Kevin Smith (Director for the Office of Scholarly Communication at Duke University).

The Eleventh Circuit affirms what a magistrate and district court had earlier declared, that the uses of the photograph were fair use. The four-factor analysis (as required by American law) was duly followed and might spark some discussion about the fairness of use for those who wish to use a figure, table or excerpt without authorization in a scholarly publication.

Paraphrasing from the decision:

  1. Purpose and character of the work (pages 6-8): The use of the photograph was deemed primarily educational (the author of the blog “sought to warn and educate others about the alleged nefariousness” of the person) and noncommercial (the author of the blog received no remuneration for the posts). The use was also deemed transformative as “… Courts often find such uses [of faithfully reproduced works] transformative by emphasizing the altered purpose or context of the work, as evidenced by the surrounding commentary or criticism.” Thus factor one favours fair use.
  2. Nature of the work (pages 8-9): With reference to American precedent, this factor hinges upon whether the work had been previously published, and, where the work lay on a scale ranging from factual to fantasy. While recognizing that photography is often an artistic endeavor, in this instance the photograph was deemed a capture of a moment – a visual factual record. Further distribution of such works favours fair use.
  3. Amount of the work used (page 10): Too often it is assumed that since an image is used in its entirety, permission must be sought. The Eleventh Circuit firmly discarded that view, “Though ten blog posts reproduced the Photo in its entirety and without alteration, to copy any less of the image would have made the picture useless [to the story]. … As such, the third factor neither weighs for nor against a finding of fair use.”
  4. The effect of the use upon the potential market for the work (pages 11-12): This matter was settled quickly; the complainant had purchased the copyright in the photograph expressly to suppress its future publication, thereby signaling a willful disinterest in any future market. Thus, the contribution of this factor favored fair use.

It is worth pointing out the Eleventh Circuit offered a cogent reminder that market harm must be examined as: “… whether… the use would cause substantial economic harm such that allowing [the use] would frustrate the purposes of copyright by materially impairing … incentive to publish the [prior work].” There is considerable latitude in such assessment.

Particularly as readers were instructed at the outset, that the four factors are to be read together. Therefore, the use of previously published figures, tables, or excerpts that may well be factual in nature, surrounded by commentary or criticism, in support of a new scholarly work (otherwise known as furthering research, education, public wellbeing, etc. — all those matters that go into promoting progress in a society) has a strong probability of being deemed fair.

However, non-MIT authors may have a more difficult time voicing such an argument if the academic publishing community has officially decided such uses are only permitted after contractual discussion. While it is understandable that an institutional press would wish to smooth the way forward for its own authors, and to protect themselves from litigation by other publishers, it would be more laudable if institutional presses could take the path of supporting best practices that fulfill fair use.

Coincidentally, also on 17 September, during an event hosted by American University Washington College of Law, the tenth anniversary of the start of the Best Practices of Fair Use Project was celebrated. Renowned professor of law Peter Jaszi chaired the event, and spoke passionately about the theory behind the project:

When members of a practice community come together …, talk about their fair use rights, and the appropriate employment of those rights in furtherance of their mission, then the record of those conversations and the consensus to which those practitioners come can be in itself a powerful … force for change. It not only documents but it also influences …

Ten years on, with the aid of Jaszi’s colleague/co-author Patricia Aufderheide (Director of the Center for Media & Social Impact), over a dozen fair use best practices’ documents have been developed on a wide range of topics, including documentary film, visual arts, orphan works, poetry, and teaching/research/study. We can only hope that these documents might yet become compulsory reading at every institutional press.

setting aside a library exception

In Posts on September 20, 2015 at 6:51 am

When specific institutional exceptions entered into the Copyright Act in 1997, the ensuing challenge was to decode an array of conditions, spread over the distinctions between Educational Institutions, Libraries, Archives and Museums, the kinds of machines installed in these institutions, and such permutations and combinations thereof. The effort to determine where legitimate copying began or ended was not for the faint of heart.

Receiving Royal Assent in the Second Session of the 35th Parliament 1996-1997 (through a bill named C-32), the exception for libraries concerning interlibrary loan (ILL) was less than generous. It was restricted by genre to scientific, technical or scholarly works — fiction or poetry was strictly disallowed — with newspapers only eligible if more than a year old, and restricted by purpose to only research or private study. It also mandated that copies could not be in digital form.

The construction of the exception was intended to facilitate productive unauthorized uses of copyrighted material, but then was called upon to placate copyright owners who opposed exceptions of any kind. At the time, economist Michael Rushton observed that “[the exceptions] were heavily amended at committee stage, generally in favour of creators’ groups (p. 327).

Moving ahead to our current Act (as shaped by amendments assented to in 2012, ushered in by another Bill C-32 and finished by Bill C-11) the exception has seemingly improved. Digital copies are permitted, but under conditions. Paraphrasing from Section 30.2 (5.02), when a patron requests a resource via ILL, if that request is filled with a digital copy, the providing library must take “measures” to prevent the requestor from:

  • making further copies (other than printing one paper copy for his/her needs),
  • communicating the digital copy to anyone else,
  • using the digital copy for more than five days following first access.

Taking “measures” allows for some elasticity in application, libraries are shielded to a degree from adopting onerous surveillance practices. But it should be evident that this style of exception is woefully inadequate to the reality of past and current information flows.

A routine need is the sharing of materials among a group. This can take form in a myriad of ways: students working on a group project, researchers or writers collaborating from near and far, professional societies responding to regulatory developments, or civil servants addressing media coverage, just to name a few. Yet under Section 30, each member of a group must submit a request for necessary material, which the supplying library will fill, many times over. And this presupposes that all sources of material are known in advance and that serendipity has no role to play.

While the caveat of Section 30 is inefficient and illogical, disregarding a section of any Act leaves a feeling of unease. Fortunately, libraries need not follow Section 30 piecemeal; instead, libraries are able to rely upon the entirety of fair dealing instead.

Section 29 is concise: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” There are no further restrictions upon the purpose, no restrictions upon genre and (as CCH Canadian taught us eleven years ago) no restrictions regarding commerciality (para. 51). Of course, the unwritten  rule since CCH Canadian is that the proposed copying must be evaluated for fairness, via a framework of context-appropriate factors.

Consider the following: A person submits an ILL request and further distributes the material to a group. If all involved in that group are each entitled to make that ILL request, it is difficult to see how a single request on behalf of a group of entitled individuals could be construed as unfair. If anything, that single request should be lauded as it eliminates duplication of effort for both lending and receiving libraries. The fairness analysis then shifts largely to due care when proceeding with the group distribution. Meaning, posting the material to a publicly available website would be frowned upon. Instead, a secure server comes to mind. A library might make that suggestion if it so wishes. Regardless though, CCH Canadian also made it plain that libraries are not responsible for the actions of their members (para. 45).

To those who might argue that libraries must rely on library exceptions, I leave the last words to Chief Justice Beverley Mclachlin, again via CCH Canadian:

As an integral part of the scheme of copyright law, the Section 29 fair dealing exception is always available. Simply put, a library can always attempt to prove that its dealings with a copyrighted work are fair under s. 29 of the Copyright Act. It is only if a library were unable to make out the fair dealing exception under s. 29 that it would need to turn to s. 30.2 of the Copyright Act to prove that it qualified for the library exemption (para 49).

students, food insecurity, OER

In Posts on August 31, 2015 at 7:25 pm

My last post focused on a very one-sided report bemoaning the fortunes (or lack thereof) of the educational publishing industry. That industry apparently needs our support in the form of continued high-priced payments. This, without regard for either developments in law or legitimate and innovative efforts on the part of the educational community to lighten the financial burden imposed on students, parents and taxpayers.

According to the report, without such an industry, our authors would no longer be able to support themselves. The trope of the starving author is a familiar one in the realm of copyright lobbying. Every expansion of copyright (beginning with its establishment in the 18th century) has included references to writers who needed copyright protection to survive. (Yet even in those days, not every writer agreed with publishers’ pronouncements on this matter.) If authors are still struggling after 300 years of relentless expansion of copyright’s ambit, perhaps copyright is neither the problem nor the solution.

Moreover, there is another segment of society where money is tight, or tighter still, and food insecurity is real. (Dietitians of Canada indicate that the main cause of food insecurity is poverty.) Year after year, the difficulties facing post-secondary students are covered in the press. Here is just a small sample of recent discussion:

Many factors play into student poverty, but the rising cost of education cannot be ignored as the principal driver. With tuition and housing as necessities, food is seen as optional. Citing Michael Waglay (coordinator for Beyond Campus Foodbanks) Rachel Grant writes: “the first campus food banks appeared in 1991 at the University of Alberta. Now, … there is a food bank on almost every campus.”

Also appearing on every campus are shelves upon shelves of very expensive textbooks. The educational publishing industry would have us believe that only they can produce such works. Open Education Resources (OER) demonstrates otherwise. Looking for an illustrative example that would have widespread use, I examined materials for pre-calculus. OpenStax’s contribution stands out, based as it is upon a thorough development and review process. A comprehensive book (1400+ pages), it is lucid in delivery and robust in its treatment of the subject. (To ensure a knowledgeable opinion, I placed it in front of my first guide in mathematics; a woman of 35 years’ post-secondary mathematics teaching experience, spanning two countries. Full disclosure – she is also my mother.)

OpenStax College is an initiative of Rice University, with the support of many philanthropic organizations. Its goal is to offer high-quality textbooks which are free online or low-cost in print form. The array of institutions who have adopted OpenStax books is impressive, ranging from high schools and community colleges to exclusive preparatory schools and Ivy League universities.

Returning to my pursuit for pre-calculus learning materials, an informal survey of conventional offerings showed sticker prices beginning at the $150 mark and escalating quickly. With the option to reduce that cost to zero, or near zero, that saving alone could make a meaningful difference to a hungry student.

But there are barriers to the adoption of OER materials. It is not a trivial undertaking to rework an existing course to rely upon a different textbook. Students can only hope that sympathetic professors will consider such exertion worthwhile. Traditional teaching/research institutions could support both parties by recognizing such work as “service” (that component of duties essential to advancement of tenured and tenure-track alike). Yet another barrier is awareness; too many of the professoriate remain unaware that such works even exist. Finally, advanced courses or highly specialized areas are less likely to be served by OER at this time.

But barriers to some are opportunities for others. Institutions which support OER usage, or, better still, invest in OER development, can enjoy a competitive advantage among the student market. A success story that made the rounds of Creative Commons’ enthusiasts is that of Tidewater Community College (Virginia) which shifted an entire program of study to OER materials. Mike Palmedo recounted the early details in March 2014:

 Tidewater identified 21 courses and signed up faculty members to design the curriculum. They started with the desired outcomes for each of the courses, and then built the curriculum with OER materials that would meet those outcomes. Developing the curriculum took about 12 months. One year into the program, the early results are highly positive.

The initiative was not only about eliminating the prior price tag of $3679 for materials, it was also about improving teaching impact. Continuing the story, via an Inside Higher Education webinar this year, Cable Green (Director of Global Learning, Creative Commons) gave additional good news: better grades, higher rates of completion and increased student enrollment.

Closer to home, the Justice Institute of British Columbia (JIBC) is showing great leadership in the development of OER materials for their students, and is enjoying the attendant institutional benefits. Details were first presented at Open Education 2014 in Washington DC by Tannis Morgan, Associate Dean for the Centre of Teaching, Learning and Innovation at JIBC. Morgan emphasizes that not only is this effort “the right thing to do” but also that “being open has actually increased the bottom line.”


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