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Pegasus Librarian - Iris Jastram
Learning in Libraries and Loving It
Updated: 34 min 42 sec ago
I’ve always said I don’t know anything about international copyright. Knowing anything about domestic copyright has seemed like quite enough of a challenge for me. But I guess all things must come to an end.
So here’s what I know now about international copyright.
- There’s that Berne Convention you always hear about (full text here). Essentially it says that the countries that have signed onto that treaty agree that they will apply their own copyright laws to foreign works used in their countries. So a French work used in the United States has all the protections that a United States work has in the United States. No special registration required. The author owns all rights to their creative expression (except those granted to users under Fair Use) as soon as the work is fixed in a tangible medium, unless they sign those rights away to publishers and such.
- Then theres the TRIPS Agreement (full text here), which says that everyone who signed that agreement will follow articles 1-21 of the Berne Convention, except for the “moral rights” laid out in Berne Article 6bis. Again, no special registration required. Authors own their rights. Fair use applies.
- All of which leads us back to good old U.S. Copyright Act
So now you know what I know about international copyright.
Last Friday the 11th Circuit Court of Appeals handed down its opinion on the Georgia State (GSU) eReserves Case. The Cambridge University Press et. al. v. Patton ruling (the case’s formal name) sounds pretty dire if you only read the good parts version: they reversed the original District Court decision which library folks had mostly liked quite a lot (and which I wrote about here).
Now, if Judge Vinson had had his way, the ruling would have been pretty dire. For real cringe-worthy reading, have a go at his concurring opinion starting on page 113. But the majority opinion upholds much of the method of thinking about copyright that the original District Court opinion used and which made so much sense to me (with a few caveats, but really, it was pretty good).The Gist
In effect, the new ruling says that the District Court got things mostly right, but occasionally wrong, and that now the District Court has to go back over everything and come up with a new ruling based on the Circuit Court’s instructions on how to think about things differently on a few points. Now, this could mean that not a whole lot changes the second time around, or it could mean that a lot changes on the case-by-case analysis, but for the most part I’m encouraged to see that the parts of the analysis that matter to us will remain largely unchanged.
Also, I should note that neither court opinion is law outside of the 11th Circuit (which is Georgia, Florida, and Alabama), and that whatever the District Court comes up with next will likely be appealed again, so this saga could go on for decades. Even so, these opinions give us some good guidance on how to think through the copyright decisions that we make every single day, so they are worth reading and understanding. Also, the opinions quote heavily from important case law on copyright, so they serve as an excellent introduction to the major cases involved in educational copyright.More Detail
For those of us who deal with the day-to-day work of providing course readings to students, here are the portions of the case that are relevant to our decision-making.
First of all, the plaintiffs (the publishers) really wanted the Court to make a ruling on whether eReserves, as a system and a practice, was a violation of copyright law, just in general. They cited non-transformative distribution of published works as copyright infringement. The Court refused to make that judgement, which is good news for libraries and higher education. (Had it been left to Judge Vinson, things would have gone very differently.) A practice or system can’t be fair use or not, only individual uses can be fair use or not. And furthermore, even non-transformative uses can be fair use in some circumstances (see page 73).
So if we’re to make decisions on a case-by-case basis, what will that look like? Well, one of the strengths of this ruling is also one of the things that makes our jobs harder. The Circuit Court rejects all “bright lines” or simple math that will “mechanistically” determine whether a particular use is fair or not. There’s no checklist available that will spit out a perfect answer. In fact, the District Court’s initial plan to assign each of the four factors of fair use a point and then just add up the points at the end is the primary thing that the Circuit Court said needs to be re-thought. Instead, the Circuit Court says that you have to weigh each of the four factors while you ultimately try to decide if the use will promote rather than hinder the kind of knowledge creation and sharing that copyright law was intended to encourage. The Classroom Guidelines are not law and cannot be used to make blanket categories of things fair or not fair (see pages 88-89). In fact, they say that even “best practices” can only get you so far — that only an “individualized fair use analysis” will do the trick (page 85).
While all of this is consistent with the law and with prior cases, it also makes it really tricky for libraries to advise classroom instructors about what is and is not permissible when it comes to putting readings on eReserve. In effect, this decision is saying that if you say “10% or 1 chapter and everyone’s happy” you could still be in danger of infringing or causing infringement. Instead, this ruling suggests that the only way to move forward intelligently is to make and record individual, case-by-case assessments for each use. Recording the decision-making process is important because if an employee of a non-profit educational institution, library, or archives makes a decision “in good faith” that the use is fair use, the court will not levy statutory damages (see section 504(c)(2) of copyright law). If you’re looking for a model of this kind of policy, the University of Minnesota has a fantastic web form that talks people through their case-by-case analyses and then allows them to save a copy of their decision-making process: Thinking Through Fair Use. One option would be to have classroom instructors attach something like this as a cover sheet with anything they submit for eReserves.
So, how then shall we think about the four factors? The first factor is often seen as a win for educational copying (especially since “multiple copies for classroom use” is written into the fair use section of copyright law, section 107). The 11th Circuit says it’s not quiet that simple, but then ultimately says that GSU’s uses were non-profit enough and educational enough that the first factor favors fair use pretty much across the board.
The second factor was up for some debate. The District Court said that since the works at issue were all non-fiction, the second factor weighed in favor of fair use. The Circuit Court countered that there can be plenty of creative intellectual work in non-fiction publications, so this factor really has to be applied on a case-by-case basis to each use. At best this factor is neutral in determining whether the use was fair or not.
Predictably (by now) the third factor also has no easy answers. You can’t just say “10% or 1 chapter will always be safe.” Instead, you have to decide if you’re taking just what you need in order to accomplish goals that are consistent with fair use. Essentially, you have to balance this factor with the other three on a case-by-case basis.
Practically speaking, the Circuit Court sets an impossible bar for making decisions about the fourth factor, the Market Effect factor. They would like the case-by-case analysis to come up with a yes or no answer to the question: Will this use substantially impact the market for this work or for licenses of this work (but only the license piece if there’s a substantial license market for the piece)? There’s really no way for someone outside of the publishing industry to have access to the numbers and projections that would make this determination possible. Probably the closest approximation would be to decide that if there is a license available for digital excerpts, we should assume that that weighs against fair use for the fourth factor. I’m not happy with the license market becoming a market, and I’m really not happy with the massive emphasis on economics, but that appears to be the way the 11th Circuit is thinking about things. Remember, though, that having one factor weigh against fair use is not the whole story. You still have to weigh that one factor against the other three and against the ultimate mission of fair use and copyright. No easy answers allowed.
And finally, a word of caution. You may find people talking about what constitutes a “whole book” when calculating percentages copied. This issue has not been decided. The publishers want it to be the main body of the book, and GSU wanted it to be all the pages in the published book, including the index and tables of contents and such. The District Court decided not to answer this question because it was raised too late in the proceedings, and the Circuit Court said that the District Court was within its rights to decide not to decide. So far, that’s as much as we know.
More coverage from people who know more than I do:
As I mentioned earlier, last week was a busy one in part because I was busy presenting at the Minnesota Library Association’s annual conference last week. It was a blast! The audiences were participatory and I learned a lot from my co-presenters in each presentation. What fun.“The ACRL Framework for Information Literacy: What does it mean for instruction librarians?”
Presented by Iris Jastram (Carleton), Jason Paul (St. Olaf), and Rachel Weiss (Augustana), this presentation updated instruction librarians on the new (draft) Framework for Information Literacy from ACRL.
Presented by Anna Hulseberg (Gustavus), Iris Jastram (Carleton), Heather Tompkins (Carleton), and Michelle Twait (Gustavus). this presentation combined Carleton’s Information Literacy in Student Writing project with Gustavus’ mixed methods study of sophomore research practices.
As it turns out, I’ll be presenting at MLA not once but twice this week, so if you’re headed there be sure to stop by and say hi!
First I’ll be part of a panel with Jason Paul of St. Olaf and Rachel Weiss of Augustana entitled “The ACRL Framework for Information Literacy: What Does It Mean for Instruction Librarians?” We’ll talk about weaving together your institution’s mission and the new (still draft) Framework for Information Literacy to create elements in your library sessions that move students toward greater competence with the core concepts of the Framework.
Then I’ll do a quick change and present with my colleague Heather Tompkins and with two colleagues from Gustavus, Anna Hulseberg and Michelle Twait, on a session entitled “Studying the Second Year: College Sophomores, Research Behavior, and Information Communication.” The Gustavus librarians have done some fascinating research into the behaviors of sophomores who are preparing research projects, and Heather and I have been part of our library’s Information Literacy in Student Writing (based off of sophomore writing). Put the two together and we suddenly know quite a lot about sophomore skills and habits when it comes to research.
A librarian emailed me to ask what I teach when I teach seniors who are starting to write their senior theses. I realized that I haven’t written some of this here, yet, so here’s my answer to that librarian only slightly edited.
The pre-thesis session changes a bit every time because I start it with time to go around the table, have each student tell me and the group their thesis topic, and also tell us at least one thing about the research process that they’re concerned about. (This wouldn’t work for majors in departments with departmental cultures that prevent revealing weaknesses, but it works quite well for my English and American Studies and Language students.) For American Studies students I also ask them what they remember from our session the previous spring, since I get to see them at the end of their Junior year and the beginning of their Senior year. If they look at me blankly, I’ll cover that stuff again only more quickly, and if they remember a lot, I’ll add in some razzle dazzle advanced resource that will be new to them.
Basically, based on that conversation, I prioritize the rest of the hour.
There are always a few things I want to get to, of course, but luckily the students nearly always bring these things up, so the whole session usually feels like their idea even though I can usually predict at least 75% of the content.
So, what are some of these things? Many of them are covered in this old blog post of mine: http://pegasuslibrarian.com/2012/12/what-do-i-teach-anyway.html The Circular Research Process is particularly important for research at this level, as is Instrumental Reading. In addition, I nearly always talk about managing your research riffing off of the “Keeping Track” tab of their subject research guides for each major http://gouldguides.carleton.edu/content.php?pid=58440&sid=3083204
I also make sure that they either hear or remember conversations we’ve had about how bibliography is not just an alphabetical list. Instead, it’s a mind map of the scholarly conversation that the author was joining. They should get used to looking for clues about major players and how claims can be built and what counts as evidence in this conversation, etc.
Two things that come up a lot are appropriate topic scope and how to know when you’re done researching. For the first I often use the analogy of a cropped photograph for a good topic: focused in on the important parts and only gesturing toward the rest of the things that you mentally know are part of the original scene but are cut out of the cropped image. We’ll also talk about how to combine related bodies of scholarship into your new, combined topic (students often aren’t very good at thinking about related research as useful to their new claims). And as far as when you know you’re done? Being true to your cropped image and then running continually into bibliographies that list people you’ve already read.
I will always take them through the advanced research features and search strategies of the one or two databases most likely to be core to their disciplinary work. If there’s time, I’ll show them how to do cited reference searching using both Web of Science and Google Scholar. Depending on the group I’ll also do a more in-depth look at either Zotero or Mendeley, whichever the group votes up.
I also give them a “Subversive Handout” which lists questions they can come talk to me about later, and I take them through scheduling an appointment with me and give them some hints about what might be good points in the research process to sit down with me (i.e. when they’re testing topic feasibility, when their just starting to explore, just before their proposals are due, and any time they feel stuck).
Clearly, I don’t to every piece of this! But these are the things that I’m prepared to do and that I choose from during that initial conversation with the group.
Ok, I wasn’t going to write more about this. I felt like other people were doing a much better job, and I don’t have much of substance to add. And besides, writing about this kind of thing is apparently risky business and I’m kind of risk averse. But here’s the thing: I’m mad. So here I am again.
I’m mad because I myself am reluctant to put names into the sentence “So-and-so created a hostile environment for me and other women at such-and-such conference” in a public and googleable place. I’m mad because women like Amanda, who experienced blatant and totally illegal sexual harassment at conferences, are afraid to name their harassers. I’m mad because the sentence “But he continues to be famous and I’m just a small fish in libraryland” is such a ridiculously common theme in these conversations, and such a silencing force in our profession (the quote is from Amanda’s post).
The only men who have created hostile environments in gatherings of librarians that I’ve been part of (online and off) have been big name librarians who are on the keynote speaking circuit. I have seen pictures of their naked crotches. I have seen pictures of their daughters in bustiers. I have heard them use their keynote microphones to talk about tea bagging. And I have heard of them doing even more things of this nature that I didn’t witness directly, like using the phrase “you ignorant slut” towards fellow panelists.
And yet they continue to rise through the ranks of librarians and become more and more powerful. These kinds of things are apparently “all in good fun” and hilarious jokes.
Here’s news for you powerful men and the conference organizers who keep you in business: These things are not funny. I no longer attend your sessions for a reason. And no, I am not a super sensitive little girl who just needs to grow up and realize that you’re joking. I have a pretty good sense of humor, actually. Cut it out.
Looking for a way to help out? Consider supporting #teamharpy with words or money or both, and let conference organizers know when this kind of thing happens to you.
[Edited to add: for those of you who don't know about #teamharpy, conversations about sexual harassment in libraryland were recently sparked off by one prominent male librarian suing two women for 1.25 million dollars. He's claiming defamation because they spoke out about his harassment. Libraryland is in heated conversation, now, about power dynamics, the silencing affect that lawsuits like this cause, and exactly how much of a problem this is, and how prevalent. Right now the message is clear, speaking out is more dangerous than harassing.]
Two students have come to me in the last week saying that they listened and understood while taught how to navigate the MLA International Bibliography, but then when they tried it themselves, nothing seemed to work.
This tells me two things. First, MLA is hard. Second, I’m teaching it wrong.
There are caveats, of course. One of them being that my “research for compsing seniors” instruction session is rapid-fire review of things they’ve hopefully learned in lower level courses, plus advanced techniques they’ll need now more than every before. This is the one class where covering a bunch of stuff quickly matters to me (rather than experimenting and playing with a thing or two in class).
On the one hand, perhaps these and similar caveats really do mean that I should be doing lecture/demo, having them do the “workshop” portion of a hands-on class outside of class, and then wrap up with me one-on-one, just as they’re doing. On the other hand, maybe I’m using this as permission to rely on the less difficult instruction format of lecture/demo when really I should be working at finding an efficient hands-on approach to that session. Or maybe I need to rethink the approach of my lecture/demo.
So many options, so little clarity. All I know is that these students didn’t learn what I wanted them to learn, and that’s got to be at least partly my fault.
It’s been an emotionally tumultuous month in my professional life. My profession is all about making information accessible and about encouraging the responsible use of that information. Most of the time this feels like an uncomplicated position to take. Some of the time, it feels impossible or even dangerous. Here are three vignettes that come to mind.
Libraryland is currently wrestling with news of Joe Murphy’s 1.25 million dollar defamation lawsuit against two librarians who spoke publicly about his (long-standing) reputation as a womanizer. Barbara Fister, Meredith Farkas, and Laura Crossett have all written excellent, thoughtful pieces about this issue, so I won’t even try to recreate that here. What I will point out is that they make it clear that sharing information about sexual harassment seems to be off limits in our society. If nobody can speak out, it’s no wonder that harassment continues to run rampant through our society, but speaking out is hard. And right now we’re coming to grips with exactly how hard it can be.
Yesterday I was pointed to a change.org petition from one of my institution’s now-former students. Her claim is that she is being punished with expulsion as an indirect result of calling for help and thus sharing the information of her roommate’s drug overdose. I don’t know any of the students involved, or any information beyond what’s in the petition and in this morning’s student newspaper report, but it’s clear that this incident is sitting right in the center of issues about the relative social benefits and perils of sharing compromising information.
Finally, and on a much less dire scale, my own blog is a continuous example of decisions to share and not to share. I write less often than I once did in a large part because I’m in many more leadership positions than I was before, leaving me feeling uncomfortable sharing some kinds of information for fear of losing the trust of people I work with, not because I have bad things to say but simply because I don’t own these groups’ ideas so they may not be mine to share, and people may not share ideas with me if they feel like I might report things prematurely.
Responsible transparency is hard. It has always been hard. And while the three examples that are bouncing around in my head right now have very little else in common, they’re reminding me pretty forcefully of how unendingly difficult it is to manage appropriate balances of transparency and secrecy. There are very real dangers associated with NOT speaking out. (Well, there’s nothing life-threatening about me deciding not to blog about some committee I’m running, but it might be a slight disadvantage to other people who will then reinvent the same wheels.) I only wish there weren’t also real dangers associated with speaking out. I wish our professional mantra about information wanting to be free weren’t so fraught in real life. Give me a straight up copyright or licensing conundrum any day. This other stuff is far more society-shaping, and there is so much at stake.