Public Domain and Creativity

This post was guest authored by Scholarly Communication & Publishing Graduate Assistant Nicole Moriah Rhodes.


The first American copyright law protected works for fourteen years after they were published and gave the copyright owner the opportunity to renew the copyright for another fourteen years. Few did, and works passed quickly into the public domain.

The copyright term is much longer now–it varies, but you, a human, will likely own many copyrights until 70 years after you die. Some people argue that a long copyright term increases the incentive to make creative work.

However, despite the longer term, statistical analysis of the number of copyright registrations through changes in population, economy, US law, and available technology doesn’t find that increasing copyright protection increases the number of copyrighted works. Raymond Shih Ray Ku, Jiayang Sun, & Yiying Fan (2009) find that the people advocating for broader copyright laws probably aren’t advocating for an increase in the amount of creative work: the best indicator of the number of new creative works among the variables in their study is population. Their data suggest that “Laws that reduce or otherwise limit copyright protection are actually more likely to increase the number of new works” (1673) than laws granting more protection.

Such a long period of copyright protection leaves a lot of content unusable to other creators. This comic about documentary filmmakers demonstrates how stringent copyright protections can prevent creative remixing and impede the accurate representation of the world. Work in the public domain can be shared freely, but our real lives are full of content protected by copyright, and people trying to make documentaries can be inhibited by copyright even on incidental work. When they want to use copyrighted material under the fair use doctrine, the threat of lawsuits can have a chilling effect.

Lawrence Lessig (2004) uses the phrase “Walt Disney creativity” to describe “a form of expression and genius that builds upon the culture around us and makes it something different” (24). Disney’s Cinderella, Disney’s live-action Cinderella, fanfiction, and The Lizzie Bennet Diaries could all be considered examples of Walt Disney creativity. But Disney had access to fairly recent work in his time. As Lessig writes:

“Thus, most of the content from the nineteenth century was free for Disney to use and build upon in 1928. It was free for anyone— whether connected or not, whether rich or not, whether approved or not—to use and build upon.

“From 1790 until 1978, the average copyright term was never more than thirty-two years, meaning that most culture just a generation and a half old was free for anyone to build upon without the permission of anyone else. Today’s equivalent would be for creative work from the 1960s and 1970s to now be free for the next Walt Disney to build upon without permission. Yet today, the public domain is presumptive only for content from before the Great Depression.” (24-25)

Michael Hart, the creator of Project Gutenberg and a longtime Urbana resident, viewed copyright law as impeding the abundance that technology could create, beginning with the very first copyright laws after the invention of the Gutenberg Press. While Ku, Sun, & Fan (2009) do find that copyright law helps create and protect both wealth and jobs and allows creators to be rewarded for their work rather than requiring sponsorship, they advocate for reducing copyright protection where it impedes distribution or creativity.

“Because copyright law works in the negative—effectively saying ‘do not use this work, do not copy this work, do not imitate this work’—we are not sending a message that society values the creation of new works. We are only sending the message that we should stay away from those works already created” (1722).

Creative Commons is one venture designed to allow creators to share their work for other creators’ use while preserving the level of protection they choose. However, the default is still a system that restricts access to cultural works past the time when the creator might care, and can even keep works from being preserved so they will be usable when they enter the public domain. Creators should be able to benefit from the work they create, but increasing protections does not necessarily increase those benefits. Excessive copyright terms keep us from being able to discuss and rethink our common culture.

The Georgia State University Copyright Case

Georgia State University logo.

This article was written by Scholarly Communication and Publishing Graduate Assistant Treasa Bane and Copyright Librarian Sara Benson.

Introduction

The ruling in the Georgia State University copyright case will have ramifications for rights holders and library users across the United States. If libraries have the most gain, libraries will have more guidance in making fair use decisions—at least with respect to online course reserves. But, if publishers have the most gain, they will gain more control, and annual academic licenses from the CCC will become more important and costly. However, making any sort of correlation or conclusion has proven to be difficult in this case, which has been alive for nine years strong.

History of the Case

In April 2008, Cambridge University Press, SAGE Publications, and Oxford University Press filed suit against Georgia State University (GSU) for “pervasive, flagrant and ongoing unauthorized distribution of copyrighted materials” through the library’s e-reserve system (Smith 2014, 73). When a drafted federal court complaint letter regarding uncontrolled digital copying was sent to about a dozen institutions indicating the complaint would be filed unless they contacted lawyers representing the Association of American Publishers, several institutions complied by adopting policies at the faculty senate level, but GSU did not (73). GSU said the excerpts were short and were not substitutes for textbooks; this practice was fair use. Publishers had a problem with this, saying large numbers of readings reproduced in a systematic way was not fair use.

On May 11, 2012, Judge Evans at the District Court found copyright violations in only 5 of 99 excerpts, finding that the university’s policy was a good faith interpretation of fair use (Smith 2014, 80). Judge Evans rejected the 1976 guidelines for classroom copyright; she introduced an amount of work that is “decidedly small” (79). And then on August 10, 2012, Evans rejected the plaintiffs/publishers’ severe injunction, requiring them to pay GSU’s attorney fees, which were over 2.9 million (81). The publishers were not pleased. They appealed the District Court of Northern Georgia’s ruling to the Eleventh Circuit Court of Appeals, and on October 17, 2014, the Eleventh Circuit Court of Appeals reversed and remanded the District Court’s decision in favor of the publishers (81).

On March 31, 2016, the Judge Evans reanalyzed the allegedly infringing works according to the directions of the 11th Circuit Court of Appeals and found 4 cases of infringement among 48 works, designating Georgia State the prevailing party (Smith 2014, 89). The publishers filed again in order to collect evidence about GSU’s practices because they need to know the most current conduct at GSU when dealing with the four infringements. This time, Evans estimated the weights of the four factors. Factor one, the purpose and character of the use: 25%. Factor two, the nature of the copyrighted work: 5%. Factor three, the amount or substantiality of the portion used: 30%. Factor four, the effect of the use on the potential market: 40% (2016). Evans pointed out that there was no case for copyright infringement because the publishers could not show they held the copyright, and there was no evidence that any students had used the excerpts. Another finding was that GSU’s e-reserve service was a fair use of copyrighted material purchased by its library; it was modeled on a broad consensus of best practices among academic libraries.

But the fight continued! On August 26, 2016, the plaintiffs filed a Notice of Appeal, which has been granted. Because of this, the Court of Appeals must to return to the fair use analysis for the 48 infringement claims. John Challice, Oxford University Press and Vice President and Publisher for Higher Education was quoted in “Georgia State is Going Head to Head with the Country’s Top Publishers” and summarized the desires of publishers:

We want Georgia State University (and any university that seeks to emulate Georgia State University) to change their checklist to something reasonable and legal. … We want to make it really clear to our marketplace, which are academic institutions in the US in this case, that there is no difference between copyrighted content made available in digital format or that made available printed on paper when it comes to licensing it.

More recent analysis has given factor four additional weight and factor two less weight. In instances where permissions were available and not paid, factor four strongly disfavored fair use. In cases when factors one and two favored GSU and three and four favored the publishers, a tie was created, and the court then considered the evidence of damage to the market. As a result, an overwhelming number of the cases found factor two to be neutral or in disfavor of fair use. Factor three and four were also disfavored several times. At least 4 excerpts did not favor fair use overall; however, at least 19 did favor fair use, the majority of which favored factor one, then factor four, and then factor three (2016).

Critical Points and Predictions

In order to stay relevant and maintain the same monetary expectations they had with print materials, publishers are damaging their relationship with libraries. This leaves librarians no choice but to seek other alternatives, such as open educational resources and library publishing. But more importantly, as long as librarians practice fair use, they will not lose it. Fair use is a right.

This case, which is now referred to as Cambridge University Press et al. v. Patton and Cambridge University Press et al. v. Becker (individual academics rather than GSU as a whole), will hold oral arguments through the 11th Circuit Court on July 27. As this date approaches, we should consider whether the demand for excerpts was so limited that repetitive unpaid copying would have been unlikely even if unpaid copying was a widespread practice. Additionally, we should consider whether the portion of the market captured by unpaid use was so small that it would not have had an effect on the author or publisher’s decision to produce work. Proving these will result in a stronger pull for fair use factor four and would therefore favor GSU’s academics and librarians, which would be a win for all educational institutions.

Sources

Cambridge University Press et al. v. Becker, Civil Action No. 1:08-CV-1425-ODE (U.S. Dist., March 2016).

“Georgia State is Going Head to Head with the Country’s Top Publishers.” The Signal. September 7, 2016. http://georgiastatesignal.com/georgia-state-going-head-head-countrys-top-publishers/

National Association of College and University Attorneys. Cambridge University Press w. Georgia State University: The 11th Circuit Ruling. Kevin L. Smith. October 2014: 87-91. Redacted from the Scholarly Communications @ Duke Blog.

National Association of College and University Attorneys. Georgia State University Copyright Lawsuit. Kevin L. Smith, J.D., MLS. 73-85.

Copyright Librarian Sara Benson’s YouTube Channel

Copyright Librarian Sara Benson

Guest post written by Treasa Bane

Sara Benson—lawyer, librarian, and assistant professor—is UIUC’s secret weapon. Within the Scholarly Communications and Publishing department, she provides consultations, workshops, lectures, and guides concerning copyright. As research methods and means of accessing reliable information rapidly change, copyright grows more complex. Every institution needs an intermediary between information producers and consumers to reliably and accurately educate others about the ethical use of copyrighted materials, and UIUC has one: Sara Benson.

As a library science student, I’m aware of Sara’s vital role at our university, but most other UIUC students in other disciplines may not be. Combining the worlds of copyright and librarianship results in a set of service skills applicable for all disciplines that academics can and should use. A student should not struggle through the process of building his or her ideas for a project, nor should new professors and researchers get all the way to the stage of publishing their work and not know how to negotiate a contract.

If you are an author, educator, researcher, student, or community member (Sara doesn’t close her doors to anyone not affiliated with UIUC), and you cannot find the time the attend one of Sara’s workshops or read one of her LibGuides in its entirety, but you’re overwhelmed with what you need to learn about navigating copyright, you should start with Sara’s YouTube Channel. Sara’s YouTube channel is an excellent supplement to her services and is an introduction to what she offers UIUC.

Warning: Sara’s videos might make you more interested in law-related material than expected. Sara’s videos are instructional, digestible, and engaging and conversational. While your understanding of copyright increases, you will not find yourself bored by legalese. Her first video on her YouTube channel defines copyright and the requirements in order to own it, the rights attached to it, and then how those rights are protected while also making a work available. While this particular video may be more appropriate for students and beginners, new authors might also want to review what rights apply to their work.

As someone who attended her fair use workshop, I found that her ten-minute Fair Use video manages to cover the most important aspects of Fair Use about as well as a full-length workshop. The “Do You Know Your Fair Use Rights?” video demonstrates how to weigh the four factors of fair use—for example, the more commercial a project is, the less likely it is to be in fair use, but the more educational it is, the more likely it is to be in fair use. To demonstrate transformative use, she explains the differences between parody and satire—an important and also complicated factor to determine in court cases. In the end, she summarizes her most important point that fair use is a right. Even if you ask for permission to use something and your request is declined, you can still use it if it’s sufficiently transformative—whether it’s for commercial use or you make copies or you use an entire work. Again, the nice thing about Sara’s guides are that they apply to anyone, but her fellow librarians might find this a particularly succinct resource to use or point to when advising patrons.

Her “1923-1978 and public domain” video navigates the copyright challenges brought on during this period, which entails how the copyright symbol was used, giving reasonable notice of copyright protection, and registration and renewal at the copyright office. Not only does she chart what’s in the public domain herself based on these criteria, but she directs you to cheat sheets and databases, such as the Stanford Copyright Renewal Database, and shows you how to navigate within and between them. She ends by pointing to one of her LibGuides called Copyright Reference Guide.

Ethical practice plays a huge role when you’re producing and sharing your work, whether it’s working with records, computer programs, publications, media, or chemical or biological materials. Check out Sara’s YouTube Channel—while new, she’s quickly adding videos—or reach out to Sara herself in order to build your confidence by better understanding Creative Commons licensing, international markets, university policies, orphan works, the TEACH Act, patents, registered and unregistered copyright, and more.

Scholarly Smackdown: Scalar vs. Omeka

Scholarly Smackdown is the Scholarly Commons’ new review series comparing popular online research tools and resources. This week we’ll be taking a look at Scalar and Omeka, resources for presenting research digitally.

No scholars were harmed in the making of this column.

Scalar

Scalar is a content management system for creating digital books of media scholarship from The Alliance for Networking Visual Culture, based out of University of Southern California. It features a WYSISWYG editor that allows you to edit different types of pages within a digital book. You choose how and in what way these pages connect. It’s free and you can create as many Scalar books as you want. It makes it easy to incorporate content from partner archives such as the Internet Archive and Critical Commons. The biggest selling point to Scalar, especially for media scholars, is that it lets you present media without having to host the media yourself, which is especially relevant for those analyzing media that is still under copyright. However, please do not let all of this potential power go to your head, and instead check out our copyright resources and feel free to contact the Copyright Librarian, Sara Benson with questions you may have.
In my opinion, Scalar is not as easy or intuitive to use as the people who created it seem to think it is, though USC provides some instructions for Scalar 2. The latest update has been buggy, and while ANVC/Scalar GitHub is very helpful, Scalar is clearly still a work in progress. If you do have any experience with web development, there is very limited customization, and I was not able to find specific instructions for CSS styling for Scalar 2. Finally, you cannot import  your own files larger than 2 MB, which can be frustrating if you want to use your own very high quality scans of items.

Omeka

Omeka.net is a content management system designed for creating online exhibits from the Center for History and New Media at George Mason University and Corporation for Digital Scholarship, the people behind  Zotero and THAT Camp.
Omeka basic features a WYSIWYG Editor and 500MB of file storage. The biggest advantage of Omeka is that it makes it very easy to add a lot of metadata about items that you want to display in an exhibit and create and arrange collections of these items. It also features lots of plugins (such as a CSS editor and a PDF embedded documents viewer), and the website provides very clear and thorough instructions. However, you can create only one Omeka site per account on the free version. If you contact the Scholarly Commons we can set up an Omeka site for you through the library institutional account, and you can learn more information and request an Omeka site here. 
One major difference between Omeka and Scalar is that with more storage, comes more responsibility; specifically, making sure that you have the permission to use items so that your research does not get taken down. Once again — please check out our copyright resources. Other notable drawbacks include the fact that customization is limited and Omeka.net is not great at creating things that aren’t online exhibits or exhibit-like sites.

Conclusion
Omeka and Scalar are two options of many for creating digital humanities projects. For specific questions and to learn more about Scalar and Omeka and other digital humanities resources at Scholarly Commons email us, and don’t forget to join us for a Savvy Research workshop about Scalar October 17 from 1-2 pm.

Let us know in the comments about your Scalar and Omeka experiences! Which do you prefer and why?

Further Reading:
Omeka Libguide: http://guides.library.illinois.edu/omeka
Scalar Libguide: http://guides.library.illinois.edu/scalar

Sources:

“Alliance for Networking Visual Culture » Overview.” Accessed October 12, 2016. http://scalar.usc.edu/features/overview/.
Marcotte, Alison and Alex Villanueva. “Red Cross Work on Mutilés, At Paris (1918).” SourceLab Prototype Series 1, no. 1 (2015). http://scalar.usc.edu/works/red-cross-work-1918/index.
“Image of Research” Accessed October 12, 2016.  http://imageofresearch.omeka.net/

Introducing Sara Benson, Copyright Librarian & Assistant Professor, Scholarly Communications and Publishing Unit

Sara

Today we’re welcoming Sara Benson as a Scholarly Commons affiliate. While Sara has been at the University of Illinois for over ten years, she joined the library staff this August as our Copyright Librarian & Assistant Professor in the Scholarly Communications and Publishing Unit. Keep reading to get to know Sara.


What is your background education and work experience?

I am a lawyer with ten years of experience teaching at the law school level at the University of Illinois College of Law. Prior to joining the College of Law, I worked both in a large international law firm and a small boutique non-profit law firm.

What led you to this field?

When people turn forty, they examine their life and their career goals. The same was true for me. I decided to add to my existing legal knowledge by joining the MLIS program at the iSchool part-time.Through the iSchool, I learned that I could combine my passion for the law with my new love of librarianship by working as a Copyright Librarian—and here I am!

What is your research agenda?
Right now I am working on a large-scale project to study the effectiveness of fair use training on librarians. I believe that fair use can and should be taught to librarians and, despite the fact that it is a complicated area of the law, I think librarians can digest and apply the information in their everyday jobs. Thus, I am currently working on a study to test the outcome of a fair use training session for librarians.
Do you have any favorite work-related duties?
Yes. I already love helping to provide guidance to researchers, students, and scholars about copyright related information. I helped secure the right to film an Indian film at the Tagore Festival and the patron I assisted invited me to take part in the festivities. So, already I am receiving such positive results and feedback, which makes my job a pure joy.
What are some of your favorite underutilized resources that you would recommend to researchers?
I think fair use is not utilized enough in research and teaching as a whole to justify transformative aspects of our jobs as professors and scholars. I think we (as a University) should take advantage of the fair use defense to the full extent of the law.
If you could recommend only one book to beginning researchers in your field, what would you recommend?

I would recommend Kevin L. Smith’s book titled: “Owning and Using Scholarship: An IP Handbook for Teachers and Researchers.” I just read it over the summer prior to beginning my position and it is invaluable.

Fair Use and Music

Thinking back to Fair Use Week, it might be interesting to discuss how fair use applies to something that most people enjoy—music. Music can be pretty tricky when it comes to copyright law because there are layers and divisions of rights.

First, it’s important to cover some of the basics regarding music and copyright. For example, in a popular song, both the author of the musical work and the author of the lyrics written to accompany it can have joint ownership of the copyrighted work. While either individual can grant someone else the rights to use the song, exclusive rights (the right to reproduce, distribute, create a derivative, or publicly perform or display a work) can only be given with the consent of both copyright holders. A sound recording of this same popular song has an additional division of rights. This division exists between the underlying musical work that is recorded (the popular song) and the sound recording itself.

If the recording is of an orphan work, then the problem gets even trickier because this means that either one or both of the copyright holders are unknown. This is unfortunately the case for many historic sound recordings. In regard to sound recordings and public domain (works not subject to copyright), this might be confusing—anything recorded before 1972 is under state copyright law until February 15, 2067. This essentially means that no sound recordings will enter the public domain until the year 2067. Although all of these layers are important to keep in mind, this tricky situation becomes much simpler if the use of the music is considered to be fair use.

When considering the fair use of music materials, it’s important to remember that context is critical. Despite popular belief, there is no set amount of music that is guaranteed to be considered fair use (not even two bars of a musical work or 10 seconds of a sound recording). For a use to be considered fair use then it must be transformative with value added to the work. The amount used must also be appropriate to fulfill the transformative use. This appropriate amount of copyrighted music used must play a key role in adding value to the new work being created.

This is exactly why Gregg Gillis, also known as Girl Talk, and several other artists like him have not been sued for sampling other artists’ music. Due to decisions in cases such as the 1991 Grand Upright Music, Ltd. v. Warner Bros. Records Inc. and the 2005 Bridgeport Music, Inc. v. Dimension Films, it has become common practice to seek permission and pay to use a sample in order to avoid copyright infringement. This process is expensive and takes time, and only the larger records companies can afford to spend their time and money this way. These artists and smaller record labels continue to sample music under the argument that the use falls under fair use. Whether or not sampling is legally considered to be fair use has yet to be tested in court since neither the 1991 nor 2005 cases utilized fair use as their defense. It may continue to stay out of court though, considering that if a court were to rule in favor of artists who sample under fair use, there would no longer be any reason to pay for the permission to sample.

Also, check out the many music copyright resources in the library catalog!

Special thanks to Kate Lambaria for this guest post!

Fair Use Week 2015: Celebrating the “Safety Valve” of U.S. Copyright Law

Here at the Scholarly Commons we care about copyright and related issues, and we do our best to ensure that students, faculty, and staff at the University of Illinois understand how copyright relates to their day-to-day work. Today marks the beginning of Fair Use Week (February 23-27, 2015), and we hope you’ll take advantage of our resources to understand this important exception to U.S. Copyright Law. A list of copyright-related guides from the library can be found at the end of this post.

Copyright is given a specific purpose in the United States Constitution: “To promote the Progress of Science and useful Arts.” Fair use is one of a set of exceptions built into U.S. copyright law meant to ensure that copyright does not become so restrictive as to prevent you from using protected works in ways central to this purpose. (Some other countries have a similar concept called “fair dealing.”) It’s what might allow an artist to create some parodies of other works, enable a scholar to include reasonable portions of another work in an article or book if for an appropriate purpose, or a search engine to produce thumbnail images of photographs from search results.

Words above like “might,” “some,” “reasonable,” and “appropriate” suggest why some people hesitate to make fair use decisions, even when there may be a clear fair use case protecting their actions. Fair use is governed by four factors: the purpose of the use, the nature of the work being used, the amount and substance of the work being used, and the effect on the market for the original work or its value. These factors have to be considered together, on a case-by-case basis. While previous case law can provide guidance, there are no hard rules about what you can or cannot do. For example, some people think all educational uses are fair use. While educational purposes do help under the “purpose” criteria, they are not decisive. On the other hand, some people worry that any negative impact on the market or value of the work rules out fair use. This would probably hurt your fair use case, but it again wouldn’t be decisive. Some of the most well-known fair use cases are well-documented, and they reveal how the final decision for or against fair use can be shaped by specific situations.

Luckily many everyday fair use decisions are pretty straightforward. A student or scholar may have to work out the details on how to appropriately cite another essay for intellectual integrity purposes, but except in extreme cases they don’t worry about needing permission from the copyright holder to quote in the first place. A good thing to do if you are worried whether a use may or may not be fair use is to fill out a “Fair Use Checklist” and then consider whether the overall balance of factors favor your situation. Some scholarly and professional organizations have also released guides to best practices on fair use that you may find helpful: a new example is the College Art Association’s “Code of Best Practices in Fair Use for the Visual Arts.” You can also contact us at the Scholarly Commons with copyright-related questions of all types if you need further assistance. We can’t give you legal advice, but we can point to appropriate resources and ask questions that may help you work out a decision for yourself, whatever that may be.

This week, you can also learn more about fair use from many sources online. Search for the #fairuseweek2015 hashtag on social media sites, or follow @fairuseweek on Twitter. On Tumblr, Fair Use Week 2015 is highlighting fair use success stories to inspire us all. We’ll also be participating through the Scholarly Commons Twitter feed: follow us for fair use related tweets in addition to updates on our wide array of resources to assist your teaching and scholarship.

Copyright Resources from the Scholarly Commons and Other Library Units

Special thanks to Dan Tracy for this guest post.