April 2011 Archives

Higher education is one of the many lands where copyright questions flourish and esoteric responses don't. If you live in this land, as I do, your actions relative to using copyrighted materials for teaching, learning, scholarship, and research are constrained by a number of (somewhat) inflexible realities:
1) Faculty, staff, and students need to use copyrighted content to produce quality courses, learning experiences, and research.
2) The vast majority of materials used for these purposes are purchased, licensed, or original works of university members.
3) While many are aware at some level that copyright law may intersect with their professional efforts and they want to behave lawfully - they have neither the time nor the tools to continuously successfully navigate the maze of copyright law and court decisions.
4) Money is tight, making fair use all the more critical.

However, if you know nothing else about fair use, you know that it is not designed to spit out quick, definitive answers, especially to the increasingly complex scenarios being generated by rapidly evolving technology. Nevertheless, definitive answers are still hoped for, especially if the answer facilitates the activity as a reasonable fair use.

Transformative Uses As Fair Uses

As budgets get tighter (or nonexistent), education (a favored use anyway) looks ever more longingly at fair use to accommodate the few uses or works we haven't already paid for. The current trend in court cases involving copyright infringement and fair use defenses has focused the courts' fair use analyses (evaluation of the four fair use factors) on whether or not the defendant's use of or purpose in using the plaintiff's work was or was not transformative. Indeed, the court's opinion on whether or not the defendant's use was transformative enough has become pretty much the deciding factor as to whether or not the use was fair and, therefore, not infringing. This emphasis on transformative use holds true (for the most part) even when the entire work is used, even when the work itself has not been altered, and even when the use is commercial.

If such generalizations as I have just made are taken at face value and severed from the case facts themselves, one could see how nearly every use could be maneuvered into a category of "transformative" use and, therefore, justified. I've heard the suggestion that copying and posting entire scholarly journal articles into online courses could be characterized as a transformative use because the author of the article wrote it for colleagues' information and education, not for students. That stretches the notion behind transformative use, including some questionable assumptions about the original author's purpose(s).
There is also the obvious question about the intersection or potential overlap between a "derivative work" and the "transformative" use.

Since these rather broad generalities about transformative use tend to spread like wildfire, because they tell people exactly what they want to hear, a closer look is warranted.

First, what is a derivative work and what is a transformative use? The Copyright Act defines a derivative work as a "work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art, reproduction, abridgment, condensation or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work." Making a derivative work is one of the exclusive rights of a copyright holder. Note, in particular, that the definition of a derivative work even includes any other form in which a work may be ...transformed. Also note, though, that it refers to a transformed work - a transformation of the content itself - but not necessarily a "transformative use." So a work could be transformed but not actually transformed for a "transformative purpose."

Hmmm. What, then, is a "transformative purpose?" The most quoted definition or description comes from Justice Story in the Campbell v. Acuff-Rose decision (the "Pretty Woman" case) wherein he asks whether the new work merely "supercedes the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new meaning or message?"

So how do the courts reconcile the concept of a work 'transformed' so as to constitute a potentially infringing derivative work with the trend towards finding fair use where a work has been used for a transformative purpose?

In order to get a handle of some sort on this area, I researched case law and law review articles. The clearest and most informative analysis for me was found in a law review article by Anthony Reese in The Columbia Journal of Law & Arts entitled "Transformativeness and the Derivative Work Right" (31 Colum. J. L. & Arts 467 (2008). I highly recommend it and I credit Reese with much of what I will summarize from here on.

After thoroughly reviewing dozens of cases, Reese concludes that "the appellate courts do not view fair use transformativeness as connected with any transformation involved in preparing a derivative work, and that in evaluating transformativeness the courts focus more on the purpose of a defendant's use than on any alteration the defendant has made to the content of the plaintiff's work."

So, the concepts are separate: transforming the work has to do with the derivative work right; transformative use has to do with the defendant's purpose in utilizing the work, whether or not the original is altered or not and figures into the fair use analysis.

Reese then reviews the courts' treatment of the four possible scenarios:
1. Transformed work and transformative purpose
2. Unaltered work and transformative purpose
3. Transformed work but no transformative purpose
4. Unaltered work and no transformative purpose

The first, not surprisingly, generally results in a finding of fair use and the last in a finding of infringement. It's the two middle scenarios that are of most interest. He quotes the Ninth Circuit as stating "even making an exact copy of a work may be transformative as long as the copy serves a different function than the original." (Perfect 10 case) Nearly all the cases where a transformative use was found resulted in a finding of fair use. Conversely, if there was no finding of a transformative purpose, even if the original had been altered, the cases concluded no fair use. (like the Seinfeld Trivia book case).

The case that interested mo most, from the point of view of faculty inserting works into their online classes and then trying to assert a transformative purpose argument was Infinity Broad Corp. v, Kirkwood. In that case, the defendant marketed subscription access to live radio broadcasts. His claimed purpose was "informative" because he theoretically was marketing access to subscribers so they could evaluate talent, advertising, programming and so forth. He asserted this was a different purpose from the radio station's entertainment purpose. The court acknowledged that the purposes were different, but difference alone did not necessarily make the second purpose a transformative one. Instead the court found Kirkwood's purpose non-transformative "because it involved 'neither new expression, new meaning nor new message' and instead "merely repackages or republishes the original.'" (from the Reese article)

This strikes me as awfully close to some suggestions I mentioned regarding faculty using scholarly articles to teach online because their purpose was instruction and the original purpose of the articles was communication with other scholars.

It also follows, as Reese suggests, that one should exercise caution in imputing a specific and/or single intent or purpose to the original author. It may well be that the author had multiple motivations behind creation of her work. You may also be wrong and/or cross the line into presumptuousness when you decide all by yourself, the creator's motivation for making the work in the first place.

Peggy Hoon

It has been said that there is nothing so compelling as an idea whose time has come. Perhaps we should add a problem or situation whose continued persistence, despite reasonable proposed solutions, is so costly, so time-consuming, so unnecessary that it compels outcry, it compels our attention, and it compels a rational solution now. Now.

I've said it before, I'm saying it again once and for all. Institutions of higher education in the United States can no longer afford to squander scarce resources in the current endless cycle of rehabilitating the same unacceptable license language that accompanies online scholarly journals, databases, and other electronic resources. Over and over, day after day, institution after institution, time and money are spent just trying to keep the use rights and other rights that we already possess under the law from being constricted. To access material that our university professors and researchers have generated. Meanwhile, classes are cancelled, people are laid off, entire programs are eliminated, and our system of higher education continues its slide to mediocrity.

I bring this to your attention, one last time, because this clearly is a problem whose demand for a uniformly successful solution has come. Just this past week, a strong cry for license reform has spoken. The Charleston Advisor's latest edition, April 2011, rings with the clear tones of Stanley Wilder, University Librarian at UNC-Charlotte, in The Erosion of Fair Use Protections for Digital Scholarship, as he challenges us to stop playing defense and rethink the vendor's license as the point of departure. He calls for reframing "the existing debates about licenses...so as to put protection of fair use principles front and center." Furthermore, if his examples of egregious licensing language, while familiar to library license negotiators, doesn't bestir, if not actually offend, academia from administrators to faculty to staff to students, I suspect nothing will.

Several months ago, shortly after starting the IP Scholar term as well as teaching my first Digitization Course online, I posted a blog on licensing of electronic resources in the university library setting. The point of the blog was simple:
• Most university electronic resources in the library are governed by a license agreement that originates with the resource vendor.
• These licensing agreements are legally binding contracts.
• Almost every license agreement requires modification of the terms before it can be accepted by the library/university.
• Negotiating different licensing language for each license is resource intensive, in terms of time and the involvement of multiple layers of institutional authority on both sides.
• Despite the repeated unacceptability or impossibility of many of the clauses, very little evolution or term improvement seems to occur; that is, each new negotiation starts back at square one, over and over.

License negotiation, in this setting, appears to me to be very similar, if not identical, to the activity or practice as it existed when I began my association with it, over a decade ago. Incremental improvements have occurred, such as more systematic methods of tracking the progress of a specific license; development of licensing guidelines particular to an individual organization; increased opportunities for library licensing training; convincing the library that it actually had to do what it agreed to do, such as informing users of terms; encouraging communication of licensing terms to other library departments with a need to know like ILL; convincing my (1st) library that Friends of the Library members were not authorized users, and so forth. Additionally, more national efforts to create model library licenses (NERL, etc.) and the promotion of a memorandum of shared understanding concerning use of e-resources (SERU - but this is not a license) also have been created.

My first blog entry came to the attention of a much wider-read, established listserv, liblicense, where it generated a lively and informative discussion. Apparently, many were also experiencing frustration with the constant and time-consuming license negotiation process while others considered the issue sufficiently addressed as a result of the imaginative and valuable efforts of the SERU group as well as those pockets of consortia or associated libraries who have had success in convincing vendors to use their own model library licenses. All of these efforts are to be applauded. I'm sure I have left others out unintentionally and I am in no way criticizing such efforts. Their successes, however, are not universal, by any measure and for many of us the problem remains.

By far the most illuminating comments came from those who argued that no single model license would ever be successful because there were simply too many variables involved: types of vendors, types of resources, types of buyers (public or private institutions, for example), size and resources available to different buyers, and different governing laws and policies unique to individual states.

It is this viewpoint that resonates the most to me - it is so strikingly obvious. However appealing it is to hope that sellers and buyers of electronic resources should be able to accept the principles set forth in a document like SERU and confine their negotiations to amount and price, I fear the licensing model, as a way of doing business and of shifting liability, has become firmly imbedded. Speculating on how or why this model was meekly (?) accepted as appropriate for acquiring access to the electronic version of non-licensed print materials is probably a waste of time. One can't help but note, nevertheless, that subscribing to a print journal never involved requiring the subscriber to monitor the lawfulness of the activities of those who read it or to indemnify the journal should said user violate intellectual property laws. Why did libraries ever go along with this business model in the first place?

As hopeful an option as SERU is, it has not yet achieved significant success and acceptance. An interesting discussion of this and other efforts can be found in a 2010 article "Informing Licensing Stakeholders: Toward a More Effective Negotiation" in The Serials Librarian, Vol. 58: 1, 127-140, a panel discussion including a representative from the SERU Working Group. (see below for cite)

Those of you, on the ground, still spending your days negotiating and rehabilitating license after license agreement, do not need an article or me to tell you that the situation, overall, is pretty much the same as it has been, pockets of success here and there notwithstanding - NERL and OCUL, for example. Even those, though, start with the premise of a single license model, one-size-fits-all. The liblicense responses have convinced me that such a model is not the answer. We need to empty our full cups ("you cannot fill a cup that is already full") and open our collective minds to that notion.

What do you do when one size or one choice does not meet the needs of an industry? One obvious answer is to offer a selection of licenses addressing the primary subsets of needs. But will that help or just offer more starting points or entry into the back and forth of negotiations? If so, that may simply create more work.

Perhaps, to accommodate the many variables - type of product, type of vendor, type of institution or customer, individual jurisdictional mandates - the license or agreement needs to be parsed or dismantled into its component parts. Not such a hard thing for an instrument like one of these licenses. It's already been done repeatedly on sites that analyze the pros and cons of various sections and offer acceptable and unacceptable language. The instrument itself is already divided organizationally into sections. No doubt your own company or institution - licensor or licensee - has already developed its own internal licensing guidelines.

Suppose then, that stakeholder representatives could develop mutually acceptable, approved language for each category of the license, and, where appropriate, several approved language options for those particular categories where one size does not fit all and there are varying needs of product, vendor, buyer, etc. In short, build-a-license, customizable to meet the needs of different situations. With pre-approved clauses, the need to have each proposed language change during a negotiation taken back to the lawyers or the individual with approval authority is eliminated. Think of the potential for efficiency, consistency, customizability and a streamlined process.

This is an approach with potential - enough to warrant further exploration and we're working on it. All comments, suggestions, interested participants are welcome. Think about it. Let us hear from you -

Peggy

Cite: Chamberlain, Clint , Damijonaitis, Vida , Lamoureux, Selden Durgom , Rubinstein, Brett , Sibert, Lisa and Westfall, Micheline(2010) 'Informing Licensing Stakeholders: Toward a More Effective Negotiation', The Serials Librarian, 58: 1, 127 -- 140; url: http://dx.doi.org/10.1080/03615261003622940