Meera Nair

Posts Tagged ‘best practices’

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.

what happened to January?

In Posts on January 31, 2012 at 9:20 pm

January seems all but a blur  — two new courses to teach are keeping me busy. But I had a glimpse of the outside world, long enough to notice the SOPA/ACTA protests, the growing list of digital lock dissenters, and the implications for Bill C-11. (Thank you, Michael Geist.)

Two other interesting developments occurred in the last few days. On 30 January 2012, Access Copyright issued a statement, describing an agreement reached with the Universities of Toronto and Western Ontario in relation to copying of materials in paper or digital form. The statement does not give too much by way of detail, other than to say a fee was agreed upon ($27.50 per full-time student), the agreement is backdated (how far back we do not know) and that an “indemnity provision increases the university’s legal protection against copyright infringement.”

The last clause is a curious one. It is unclear how precarious either university’s position was in terms of a viable charge of copyright infringement. But it invites the question — how stringent are the terms of the agreement as to have each university feel further protected?

Moreover, applying a set fee to all students, regardless of whether they use course packs or not, suggests a marked increase in funds flowing to Access Copyright. According to the statement, neither the universities nor Access Copyright knows how much copying is happening: “Over the course of the next year, a method will be jointly developed to assess the actual volume of copying of copyright protected materials which will assist in determining the appropriateness of the royalty structure in subsequent years.”

Could not the copying have been assessed first, and then the contract drawn up? In the meantime, as other universities have opted to do, permission and payment for copying could be handled directly with the publishers.  A task that is part of a publisher’s duty.

Howard Knopf has a good post about this matter.

A far more agreeable announcement came from the Association of Research Libraries (ARL). The Code of Best Practices in Fair Use for Academic and Research Libraries is now available. Developed in partnership with the Center for Social Media and the Washington College of Law at American University, the code describes reasonable copying that can be taken under fair use, in the pursuit of academic inquiry and higher education:

This code of best practices identifies eight sets of common current practices in the use of copyrighted materials in and around academic and research libraries, to which the doctrine of fair use can be applied. It articulates principles describing generally how and why fair use applies to each such practice or situation.  Each principle is accompanied by a list of considerations that the library community believes should inform or qualify it, limitations that should be observed to assure that the case for fair use is strong, and enhancements that could further strengthen that case.

Of course, fair use is not fair dealing and the American context differs somewhat from Canadian circumstances. But reading this code is instructive towards recognizing how Canadian practices may already support a healthy practice of fair dealing.

This is not the first such effort by the Center for Social Media, similar codes organized by genre or media practice are available here. And, the Center’s founder, Patricia Aufderheide (American University, Professor of Communication) with Peter Jaszi  (American University, Professor of Law) are the co-authors of Reclaiming Fair Use (2011).  Details are available here.