My AALS Presentation: Cutting the Gordian Knot: Possible Solutions to the Conflict between the Gift, Work-for-Hire, and Market Models for Academic Work

This is the abstract and a short conclusion from my recent AALS presentation; the article will be published in IDEA: The Intellectual Property Law Review. Also, for a longer version, read Rebecca Tushnet’s writeup of my presentation of an earlier draft at the 2009 IP Works in Progress conference.

Academics are involved in an unique circular relationship to intellectual property. They build their work “on the shoulder of giants” – building on the expression of ideas by others, often being paid for work relating to their production of copyrighted materials, yet the custom is for them to retain copyright.

Academics then gift, sell, or license their works to publishers, who then sell or license these works back to the institutions that were the underlying support for their creation. This leads to several unfortunate situations: institutions paying for work twice, academics holding the inaccurate viewpoint that they can use copyrighted materials as long as they are for educational purposes, and academics technically being unable to reuse or revise works once their copyright has been transferred.

Further complicating the situation is language in the licenses for many of the databases that academics use – explicitly rejecting use for non-educational purposes or commercial purposes.

My forthcoming article discusses the development of the teacher exception to copyright through both common practice and case law, but will focus primarily on the potential solutions:

  • contract: explicitly changing the contract terms of employment;
  • statutory interpretation: by interpreting fair use broadly to more explicitly include educational use by the institution that pays for the work’s creation;
  • statute: creating an exception to copyright similar to public access to government funded research by the National Institutes of Health (42 USC § 282c (2009)); and
  • license: creating an open access / institutional repository to create an access point for faculty research, similar to the new policy followed by the Faculty of Arts and Sciences of Harvard University.

My Solution

A Multifaceted Institutional Repository to suit the needs of institutions and faculty:

  • To include all published academic works produced through institutional funding
  • Allows for portability for faculty from institution to institution
  • Will have buy-in from all levels – prefer mandate approved by faculty
  • Will allow for other faculty at the funding institution to use without needing to be concerned about permissions
  • Use present open source searching and later searching improvements
  • Allow for additions to the repository to be made by
    • Author, publisher, or institution (such as through the library)
    • Would allow for a delay (as with NIH mandate of placement in repository within 12 months)

Want more? Including why law review publishing is an ideal place to start creating an effective cross-? Then you’ll need to wait for the article!


Copyright Hall of Janus? : Harvard University’s Two-Faced Approach to Copyright

Harvard University recently has taken two very divergent approaches to copyright. I commend Harvard on the one hand for their open access policy, and on the other hand, I am shocked by a complete disregard for generally socially accepted standards of fair use.

Last year, Harvard University’s Faculty of Arts and Sciences, Law School, and Kennedy School of Government created Open Access policies, including

a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.

Peter Suber of Open Access News lauds this step, saying that

Harvard will be the first university in the US to adopt an OA mandate. … [It is a] permission mandate rather than a deposit mandate. Instead of requiring faculty to deposit their postprints in the IR, it merely requires them to give the university permission (non-exclusive permission) to host the postprints in the [institutional repository].

As long as the university is willing to pay people, usually librarians, to make the actual deposits, it could be a faster and more frictionless way to move the deposit rate toward 100%.

Moving towards an open access approach to scholarship fits within Harvard’s approach to ownership and copyright. The Harvard University Intellectual Property Policy states, in part, that

the policy should encourage the viewpoint that ideas or creative works produced at the University should be used in ways that are meaningful in the public interest. This may be accomplished through widespread dissemination. Thus, dissemination and use of ideas and creativity should be encouraged throughout the Harvard community.

…It is expected that when entering into agreements for the publication and distribution of copyrighted materials, Authors will make arrangements that best serve the public interest.


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Book Review: David Bollier’s Viral Spiral: how the commoners built a digital republic of their own

David Bollier’s Viral spiral : how the commoners built a digital republic of their own is a very good book with a horrible title. While there are many books about various elements of free/open-source software (like GNU/Linux), Creative Commons licenses, peer production (remix and mashups), and open models for success (Wikipedia, open science, open education, and open business), I think this is the first book to discuss these within the context of a social history.

So why is a social history so important? There are other books that discuss what the commons is or what it could be, but this is the first book to truly try to capture the process of creating the framework for the commons by theorists and practitioners. In reading several sections, especially on Creative Commons, I felt like I understood better how the process evolved. Where we are now doesn’t just happen, people create it, and there are missteps and corrections made. Viral Spiral helps to see the warts-n-all process, rather than just showing things as they are now.

So what are the issues with the book?

First, the term, viral spiral. Just no. Bollier does make a good argument for his term — but it just doesn’t have the right sound to it — or capture the holisticness of the idea. My suggestion would be participatory meme (but even that doesn’t quite get there). Maybe Henry Jenkins’ term, convergence culture?

Viral spiral is apt … because it suggests a process of change that is anything but clean, direct, and mechanical. …  Life on the Internet does not take place on a stable Cartesian grid—orderly, timeless, universal—but on a constantly pulsating, dynamic, and labyrinthine web of finely interconnected threads radiating through countless nodes. … Viral spiral calls attention to the holistic and historical dynamics of life on the Web, which has a very different metaphysical feel than the world of twentieth-century media.

Second, considering my interest in fans and fandom, it is interesting how few mentions of fandom there are in the book — excepting musical fandoms. There is the requisite Nine Inch Nails Ghosts mention and a discussion of the Grateful Dead bootleg policy (but no mention of the subsequent changes in policy).

Relatedly, there is nary a mention of pre-internetz created remix / fanworks forms such as vidding and fanfic — and therefore, this social history is incomplete, especially as related to (often-gendered-as) girl or women commoning activities. Additionally, since the book focuses on the names that made this possible (important for a social history), it ironically glosses over many of the small contributions of the commoners.

The gaps in the social history exist, but everything that is in this book is valuable, and likely would be lost but for this book. And this is the win quote from the book:

Individuals working with one another via social networks are a growing force in our economy and society. The phenomenon has many manifestations, and goes by many names—”peer production,” “social production,” “smart mobs,” the “wisdom of crowds,” “crowdsourcing,” and “the commons.” The basic point is that socially created value is increasingly competing with conventional markets, as GNU/Linux has famously shown. Through an open, accessible commons, one can efficiently tap into the “wisdom of the crowd,” nurture experimentation, accelerate innovation, and foster new forms of democratic practice.

This is why so many ordinary people—without necessarily having degrees, institutional affiliations or wealth—are embarking upon projects that, in big and small ways, are building a new order of culture and commerce.

The book has a Creative Commons license and is available as a free e-book; however, it is only available as a whole — rather than also as individual chapters. I understand this way makes statistical analysis of downloads easier — but sometimes one only wants to look at one chapter — or references!

#Amazonfail, the Google Books Settlement, and the importance of open access for preserving cultural heritage: In honor of National Library Week

Over the past two years for National Library Week, I have posted about the importance of openness of publication and accessibility of government information and the limitations of relying on Google. Free Government Information,, OpentheGovernment (PDF),  and others, are continuing to do a great job of promoting openness in regards to government (and scholarly) information. Unfortunately, most people are not aware of the great usefulness and importance of government information. But they do know about Amazon, Google, and YouTube, with many among us using them everyday. What would many do to find information if they stopped working?

The #Amazonfail censorship/ glitch / griefing situation last weekend shows the power of publics working together and the organic nature of much of tagging and movementsourcing; people will often be able to create a simple way of communicating information with each other (the first person to use the #Amazonfail tag on twitter used it because it worked as a folksonomy of the situation and it spiralled from there because it was effective). But it also shows the difficulty for all when most rely on one source — Amazon — for information about bestsellers and similar items.

Siva Vaidhyanathan says that #Amazonfail is more than just about crowdsourcing and user tagging, it is about “metadata, cataloging, books, Web commerce, and justice.” A commenter quoted in the New York Times states that “We have to now keep a more diligent eye on Amazon and how they handle the world’s cultural heritage.”

Have we really placed Amazon (and similar companies) in charge of our cultural heritage? Perhaps not directly, but many people have high expectations for these companies’ ability to make information accessible –even if this does not take into account most of the aspects of information literacy.

But libraries differ from these for-profit companies in how they organize information and why they exist. Most libraries are not-profit and their goal is to serve some type of public (what librarians call a patron group). Libraries are generally built on similar organizational systems to each other– such as Library of Congress or Dewey classification, but libraries are intentionally duplicative in their collections. Not only do libraries often have the same item in their collections, but through interlibrary loan, libraries are tied together in a larger network.  And unlike Amazon and Google, even if a library’s online catalog wasn’t working, a user could still use the organizational system to find useful information.

But another major difference is that libraries — and even twitter — directly rely on people for the system to work, not a algorithm, as with Amazon and Google. As we’ve seen with Googlebombing and likely with #Amazonfail, it is possible for an algorithm to be fooled. Or provide inaccurate information.

We rely on Google quite openly, even though sometimes the information is not right. For example, as of when this post is posted, the top result when googling “four stages of tornadoes” gives the blunt answer of “u suck balls” from wiki.answers. This can’t possibly anywhere close to the correct answer to this scientific question, but it is the one Google’s algorithm is choosing!

In my previous posts, I mentioned how what Google has promised from Google Books isn’t what is actually available in many cases. However, some are expecting this settlement between two private/non-public entities to somehow also be a settlement that protects the interests of the public, though there are many that disagree, including Siva Vaidhyanathan, some vehemently. There is a group of professors attempting to intervene in the Google settlement on behalf of the public:

“The proposed settlement will make Google the only company in the world with a license to use orphaned works.  No other company will be able to buy a similar license because, outside the context of the proposed class-action settlement in this case, there is no one from whom to buy such a license….The settling parties plot a cartel in orphaned works.

…  Because exclusive rights in orphaned works do not serve the ultimate purpose of copyright, the public domain has a claim to free, fair use of orphaned works.

We have the right to intervene to present the public domain’s claim to free, fair use of orphaned works.  None of the present parties will present our claim….”

And what about YouTube? While there is much government information on YouTube, what happens if the company goes out of business? Free Government Information ponders whether

agencies that rely on YouTube as a channel of communication keeping copies of the videos they post there? Would they make them available through another channel? What if … libraries had copies?

Relying on private companies — like Google, like YouTube, like West — to give us access to government information — leaves us without options if these access points disappear.

Presently under challenge is access to government-funded scientific information by H.R. 801 – The Fair Copyright in Research Works Act introduced by Rep. John Conyers. If enacted, the bill would reverse the National Institutes of Health (NIH) Public Access Policy regarding public access to taxpayer-funded research and make it impossible for other federal agencies to put similar policies into place. Publicly funded medical research is the metadata of our lives — we don’t see it, but it affects our health and how we live our lives.

Many oppose this bill, including Harvard University, which has written a letter opposing this legislation:

The NIH public access policy has meant that all Americans have access to the important biomedical research results that they have funded through NIH grants. Some 3,000 articles in the life sciences are added to this invaluable public resource each month because of the NIH policy, and one million visitors a month use the site to take advantage of these research papers. The policy respects copyright law and the valuable work of scholarly publishers.

[Instead of passing this bill], Congress should broaden the mandate to other agencies, by passing the Federal Research Public Access Act first introduced in 2006. Doing so would increase transparency of government and of the research that it funds, and provide the widest availability of research results to the citizens who funded it.

Google, Amazon, and the publishing industry — are highly valuable and useful tools and services — but we should not allow closed proprietary systems to determine how we address information that belongs entirely or in part to the public — like the public domain, government publications, and publicly funded studies. And even when “public” information is not at issue, we need to become more wary on relying solely on these systems.

Multiple systems, locations, and means of access are essential to preserve our cultural heritage — as Free Government Information discusses in regards to government information, yet applicable to so much more:

… no single digital archive or repository can ever be as secure and safe as multiple archives, libraries, and repositories. … The nature of digital information is that it can easily be corrupted, altered, lost, or destroyed. It can become unreadable or unusable without constant attention. Relying on any single entity is simply not as safe as relying on multiple organizations. … But this is about more than redundant copies. It is also about relying on different organizations because they have different funding sources, different constituencies, different technologies, and different collections. No single digital collection can ever be as safe as multiple, reliable digital collections.