Open@VT

Creative Commons. Creative Commons for Educators and Librarians (Chicago: ALA Editions, 2020).

The recently issued Creative Commons for Educators and Librarians serves as the companion for the Creative Commons Certificate course (which I have not taken). At five chapters and 130 pages, it seems slight, but is always thorough and dense with references to additional resources (which are themselves annotated with Hypothes.is on the certificate website). Whether one is pursuing the certificate or not, this book is an excellent guide to understanding and using Creative Commons licenses.

Creative Commons (CC) is a set of copyright licenses, a nonprofit organization, and a movement (CC Global Network). CC got its start in 2001 as a response to the 20-year copyright extension passed by the U.S. Congress in 1998 (changing copyright to last the life of the author plus 70 years). Today CC licenses are international and used on 1.6 billion works on 9 million websites.

So what are Creative Commons licenses?

CC licenses are legal tools that function as an alternative for creators who choose to share their works with the public under more permissive terms than the default “all rights reserved” approach under copyright. (p. 7)

Creative Commons licenses give everyone from individual creators to large companies and institutions a clear, standardized way to grant permission to others to use their creative work. From the reuser’s perspective, the presence of a Creative Commons license answers the question, “What can I do with this?” and provides the freedom to reuse the work of others, subject to clearly defined conditions. All CC licenses ensure that creators retain their copyright and get credit for their work, while still permitting others to copy and distribute it. (p. 39)

To be clear, CC licenses are not an alternative to copyright (in the either/or sense), but are used with copyright, and are actually dependent upon it. Creative Commons licenses are intended for copyrightable works (text, image, sound, even 3D models), but are not appropriate for software, which has its own set of tailored licenses, and are generally not recommended for data (instead, CC0 or the Open Database License can be used).

The basics of using the licenses are covered well in the book, such as how to apply a CC license to your own work, and how to attribute the CC-licensed work of others. For your own work, you can use the license chooser, which determines a license based on how you respond to a couple of brief questions. Once you have decided on a license, you can mark your work with it, preferably by linking, or writing it out if the work is offline. Issues such as what to do if you change your mind, or find your work used in an objectionable way, are also covered. Everyone who uses CC-licensed works should familiarize themselves with the best practices for attribution and use automated tools whenever possible.

A long-time issue with CC licenses is the meaning of “noncommercial,” which the book clarifies:

It is important to note that CC’s definition of NC depends on the use, not the user. If you are a nonprofit or charitable organization, your use of an NC-licensed work could still run afoul of the NC restriction, and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the license terms. (p. 51)

Creative Commons has a NC interpretation page for those who would like to explore all of the details. The NonCommercial stipulation has been the subject of the few court cases about CC licenses, including a recent case that was decided after the book was published. The good news is that the courts have always accepted and enforced CC licenses. A related question that comes up is whether CC-licensed works can be sold. The book itself is a good example; while freely available in PDF, the print version is for sale. This model is increasingly being used to publish scholarly books, such as those in the TOME project (of which Virginia Tech is a participant).

The public domain mark and the public domain dedication (CC0) are not licenses but describe the legal status of a work. The book helpfully lists the four ways that works enter the public domain (p. 27): the copyright expires; the work is not eligible for copyright; the creator dedicated the work to the public domain through the CC0 tool; or the copyright holder did not comply with registration formalities at the time (today copyright is automatic). Though not required, CC recommends attribution for these works as a community norm in their Public Domain guidelines. Finding public domain content is facilitated by the CC Search tool, which was also made available in a browser extension shortly after the book was released.

The book’s final chapter, which covers open access (OA) and open educational resources (OER), is a mixed bag.  The section on OA sometimes lacks clarity and includes a few puzzling statements.  For example, we learn that only “some” articles that pass peer review are published by the journal (p. 94), and that under funder open access policies, “researchers must retain their copyrights” (p. 96), which is not how the policies of U.S. funding agencies work. Nor do all open access journals use “liberal” licenses such as CC BY (though some funders may require it). In general, the OA section is a bit confusing in places, and would have been more effective if OA publishing and OA archiving had been introduced early on and clearly differentiated.

Fortunately, the section on open education and OER is stronger. The advantages of OER over proprietary, temporary online access to learning resources are described well, as are the compatible licenses (CC BY is recommended; the ND licenses are not OER since they prevent editing) and the “5R permissions” they make possible (retain, reuse, revise, remix, redistribute). Tips on finding and evaluating OER are outlined, as is the importance of sharing an editable, accessible version of the work.

Although I have been familiar with CC licenses for several years, both creating and using works with the licenses, I learned more than I expected from this book. Moral rights (for example, the rights to be identified as the author of the work and to protect the work’s integrity) exist in many countries, and continue indefinitely even after a work is in the public domain. Because CC licenses only address the copyright of a work, they have no effect on moral rights and other related rights. While U.S. fair use is evaluated according to a 4-factor test, I learned that the Berne Convention, which standardizes copyright law internationally, also accommodates fair use under a 3-step test. And it was surprising to learn that not all countries allow creators to waive copyright by making a CC0 (“No rights reserved”) public domain dedication.

Creative Commons for Educators and Librarians is filled with so many links to additional resources that most readers will benefit from using the PDF version over the print version.  Even so, there are several links that don’t resolve properly because they are either partially linked or they span two lines. While this problem is relatively easily remedied by the reader, another issue runs deeper. The abundance of links in this book likely means that some will be “404” in a year or three from now. I always wonder about YouTube links as well, since Google can choose to do anything it likes with those videos, including deleting them. Preservation, including web archiving, is often overlooked yet is essential to openness.

Creative Commons licenses are a brilliant idea and an excellent fit for academia, where sharing knowledge and receiving credit are far more important than making a profit from one’s work. Hopefully guides like this one will encourage more teachers and researchers to use CC licenses on their works and enable truly efficient knowledge sharing.

Creative Commons for Educators and Librarians is licensed CC BY 4.0 and can be downloaded in PDF, or checked out from Newman Library, or purchased in print at the ALA store. Neither the book nor this blog post constitute legal advice.

Understanding and Negotiating Book Publication Contracts, prepared by Brianna L. Schofield, Robert Kirk Walker, Katherine Bridge, Alfredo Diaz, Karen Graefin vom Hagen, Anna Kuksenkova, Henry Nikogosyan (Berkeley: Authors Alliance, 2018).

The latest and largest of the series of guides from the Authors Alliance covers publication contracts for all types of books (previous guides on open access, rights reversion, and fair use were covered on this blog).  The guide covers contracts from both trade and academic publishers so some aspects of the discussion will be more relevant for trade books rather than academic books.  (Also worth noting is that neither the book nor this blog post constitute legal advice, and in the interest of full disclosure, I was one of the Kickstarter backers for this book.)

The guide is the product of interviews with many authors, publishers, agents, and copyright experts, as well as more than fifty survey responses from authors.  Some of those responses are captured in text boxes for “success stories” and “cautionary tales”; in addition, fictional “literary lessons” are also set apart from the main text.  A book publication contract “outlines what rights you as an author are granting to your publisher and on what terms” (p.4): it is certainly not something to accept as easily as software terms of use.  Indeed, the authors insist that signing a contract without negotiating is a mistake.  A book publication contract must be in writing and signed, and it is especially important to save copies of it for future reference.

Prior to negotiation, authors should determine their goals for the published book.  Is it important to retain copyright, or to be able to re-use the content in certain ways, or to keep the price low, or to have final say on design choices like cover art?   The guide recommends that authors “devote extra attention to clauses in their contracts that affect the long-term availability of their books” (p. 14).  The guide explains what “in print” and “out of print” mean in the era of print-on-demand and digital publishing, and recommends a threshold of yearly sales to be called “in print.”  If a book does not meet that threshold, an author may be able to regain rights to the book.   At a minimum, don’t assign rights to the publisher that the publisher can’t use.

Copyright is a bundle of rights: “the exclusive right  to reproduce, distribute, make derivative works, publicly perform, and publicly display the work.” (p. 51).  The grant of rights from an author to a publisher can come in three forms: assignment (copyright transfer), an exclusive license, or a non-exclusive license, but most contracts will involve either assignment or an exclusive license.  Regardless of which form the grant of rights takes, the scope of those rights can be limited, for example, by language, geography, format, and/or duration.  Duration may particularly be worth considering, since the current term of copyright is life of the author plus 70 years.   If a publisher goes out of business, for example, it may be difficult if not impossible to recover rights for the book.  In an interesting “success story” on limiting duration of rights, an author granted exclusive rights to a publisher for five years, after which rights were non-exclusive.  This allowed the author to post an openly-licensed version online, while enabling the publisher to recoup costs during five years of book sales (though there is some evidence that the online availability of books can help print sales).  If a publisher won’t  accept a limitation on the duration of rights, an author can ensure that there is a rights reversion clause or a “license-back” in which certain specific, limited rights are returned.  It’s also possible to include a “revert-back” clause, sometimes known as “use it or lose it” clause, in which rights that are unused by the publisher in a certain period of time revert back to the author.  Another way for authors to hold on to rights is to include a sentence specifying that any rights not granted in the contract belong to the author.  Subsidiary rights, which are specific rights that the publisher can license to a third party (such as translation or movie rights), can be an important revenue generator, and are usually shared with the author.  If a publisher is unwilling to change the subsidiary rights language, an author can stipulate a right to approve these licenses, or at least be consulted.

A section of the guide covers an author’s obligations, such as those relating to the manuscript’s length, delivery date, and procedures for copyediting, proofreading, and indexing.  Contracts typically require permission to use third-party material included in the manuscript (which is also common in the copyright transfer agreements for peer-reviewed journal articles).  While this generally applies to only those materials that require permission, an author might ensure that the requirement does not cover all third-party material, which overlooks fair use of copyrighted works, as well as materials that are openly licensed or in the public domain.  For the book’s copyright, the contract should specify which party will register the copyright and when.  Although copyright is automatic under U.S. law, registration within three months of publication will protect against infringement and allow for statutory damages.

What about the money?  Academic authors shouldn’t expect much here.  Advances, however, are common in trade publishing, and are credited against income from book sales.  Royalties are usually expressed as a percentage of the publication price, net income, or net profit– it’s important to understand each calculation (there’s a chart on p. 204).  Both trade and academic book contracts may include an escalation, or an increase in the royalty percentage once a sales threshold is reached, and most contracts provide for regular accounting statements to be sent to the author, and should be insisted upon even if you don’t expect significant sales.

Understanding and Negotiating Book Publication Contracts, like the other Authors Alliance guides, is a clear, easy-to-read guide focused on an author’s control of their works, particularly the ability to make the work available in whatever form the author wishes.  The guide is a valuable resource for all authors, and is an open access book (licensed CC BY) available online in PDF.   Those readers who prefer print can order a copy ($30) from the Authors Alliance, or check it out from Newman Library.  For more information, see the Authors Alliance’s Publication Contracts resource page, which includes a link to author success stories in negotiating book contracts.  Also of possible interest is the Model Publishing Contract for Digital Publishing, a Mellon-funded project of Emory University and the University of Michigan.

(Thanks to Peter Potter, director of Virginia Tech Publishing, for reviewing a draft of this blog post.)

Shadow Libraries: Access to Knowledge in Global Higher Education, edited by Joe Karaganis (Cambridge, MA: The MIT Press, 2018).

Shadow Libraries is a collection of country studies exploring “how students get the materials they need.”  Most chapters report original research (usually responses to student surveys) in addition to providing useful background on the shadow library history of each nation (Russia, Argentina, Brazil, Uruguay, India, Poland, and South Africa).  As editor Karaganis puts it in his introduction, the book shows “the personal struggle to participate in global scientific and educational communities, and the recourse to a wide array of ad hoc strategies and networks when formal, authorized means are lacking… ” (p. 3). Shadow libraries, sometimes called pirate libraries, consist of texts (in this case, scholarly texts) aggregated outside the legal framework of copyright.

Karaganis’ introductory chapter does an excellent job summarizing the themes connecting the chapters, and is worth reading by itself.  For example, the factors leading to the development of shadow libraries are common to each country covered: low income; a dysfunctional market in which materials either aren’t available or are overpriced; a rising student population; and easy access to copying and/or sharing technology. The student population boom in low and middle-income countries in the last 20 years is remarkable- quadrupling in India, tripling in Brazil, and doubling in Poland, Mexico, and South Africa.  At the same time, reductions in state support for higher education have exacerbated the affordability problem, leaving the market to meet (or more commonly, not meet) demand.  Add to this the tendency of publishers to price learning and research materials for libraries rather than individuals, and the result is a real crisis of legal access.

Due to the focus on student access to learning resources, there is less emphasis in Shadow Libraries on access to peer-reviewed articles and the best-known pirate library, Sci-Hub. However, Balázs Bodó presents two fascinating chapters on Library Genesis (LibGen) and how it was shaped by censorship and samizdat networks in Russia.  Online, shadow libraries are usually distributed (and easily forked), have separate indexing and item hosting, and are invisible to search engines (instead shared by word of mouth).  Other shadow libraries may be digital but not online, or in print.  Digital materials are often obtained via the sharing of university passwords.  In India, many materials are brought back by students studying in the U.S. or U.K.   The aggregation of scholarly materials is a community practice in which “a large majority of students… are shadow librarians by necessity if not choice” (p. 206).

The student surveys show the predominance of photocopying (in Argentina and Brazil, 90% of students obtain materials this way).  In many countries, “copy shops” in or near universities are ubiquitous, and students resort to other methods as well, such as taking photos of print materials (60% of respondents in Brazil).  Though publishers target university libraries for sales, in countries like India, few libraries can afford academic databases, and they provide access to only a “small fraction of the number of journals typically received by U.S. universities” (p. 186).

While there are some positive trends underway (the spread of SciELO to South Africa, greater fair use for education in India, and the rise of open educational resources, or OER), the current situation seems surprisingly resistant to change.  Indeed, access work-arounds only seem to reduce pressure on the system, as Karaganis notes:

“…the informal copying ecosystem operates as a safety valve… denying publishers the more complete markets they want but also forestalling a sharper crisis of access that might lead to a break with existing publishing and policy paradigms” (p. 11).

The book’s flaws are minor: some chapters go into more detail about a country’s copyright history than some readers may desire, and two chapters erroneously refer to U.S. fair use as limited to 10% of a resource.  References sometimes lack persistent identifiers such as DOIs or handles, and cited websites lack archiving (for example, with the Wayback Machine or Perma.cc, which should become universal practice in scholarship).

Shadow Libraries is a superb and fascinating book that is recommended to everyone in higher education.  As universities in wealthy countries emphasize international outreach (Virginia Tech is beginning to call itself a “global land-grant”), they should take into account access challenges around the world.  Of course, to some degree the same challenges are also present in well-funded institutions (textbook costs are receiving increased attention, and as Bodó notes, developed countries are major sources of traffic for LibGen).  Advancing university open access policies and creating OER can have impact on the crisis both locally and globally.  Emphasizing openness over prestige would help as well, with researchers in South Africa, Brazil, and Poland pressured to publish in “top” journals that often aren’t available in their own countries.  Such efforts would begin to remedy an academic environment that is “universalist in principle and unequal in practice” (p. 3).  Shadow Libraries leads one to ask: given the importance of higher education, why isn’t access to research and learning resources easier?

Shadow Libraries is an open access book (licensed CC BY-NC) available online in PDF, with buying options for those who would prefer a print copy.

Brianna L. Schofield and Robert Kirk Walker. Fair Use for Nonfiction Authors: Common Scenarios with Guidance from Community Practice (Berkeley: Authors Alliance, 2017).

Fair Use for Nonfiction Authors is the third in a series of short, helpful guides from the Authors Alliance (the first two were Understanding Open Access and Understanding Rights Reversion).  The guide was created “to help nonfiction authors understand reasonable strategies for the application of fair use in common situations.”  With the help of several scholarly societies, the authors distributed a survey which garnered the responses of 60 authors with nearly 150 fair use stories.  In addition to the survey responses, the guide was also shaped by existing codes of best practice in various domains.  Keep in mind that the concept of fair use is evolving, and that there are no clear tests of what is or is not fair use.  Also, the guide applies only to fair use in the United States (and neither the book nor this blog post constitute legal advice).

Four factors must be considered to determine whether using a copyrighted work is a fair use: the nature of the use, the nature of the work used, how much of the work is used, and the economic effect of the use.  Case law shows that judges tend to focus on two questions: whether the use was transformative, that is, was the use for a different purpose or did it give the material a different meaning; and was the material used appropriate in kind and amount?

The guide then goes on to cover three common situations encountered by nonfiction authors.  The first is criticizing, discussing, or commenting on copyrighted material.  This use is well established, but does have the following limitations: the amount used should be appropriate for the purpose; the use should be connected to the purpose; and reasonable attribution should be given to the author.  While U.S. copyright law does not require attribution, courts may find it a factor in favor of fair use, and of course it is standard practice in scholarship.

The second common situation is using a copyrighted work to illustrate, support, or prove an argument or point (unlike the situation above, here the copyrighted work is not the object of commentary).  This use is also well established, and shares the limitations above regarding attribution, the amount used, and a connection between the work and the point being made.  An additional limitation in this situation is that a use should not be made if it is merely decorative or entertaining.

The third common situation is using copyrighted works for non-consumptive research, such as text and data mining. For this more recent situation, fair use is strongly supported by existing case law. One caveat, however, is that databases being used in this manner must not have any contractual restrictions on text and data mining. And the material should not be employed in other ways, such as reading normally, or providing access to works digitized by the researcher. Real-life examples of fair use appear for all three situations described above, as well as hypothetical cases to test your knowledge.

The FAQ section of the guide covers creative and commercial uses, options when permission is refused, fair use for unpublished works, and contractual limitations on fair use.  Two questions of particular interest to researchers concern the re-use of figures, and the policies of journals and publishers that require permission for re-use of copyrighted work.  In the case of figures, including charts, graphs, and tables, it is important to remember that facts are not copyrightable.  Creatively expressed figures may be copyrightable; one must analyze each particular case according to the scenarios above.  It is worth mentioning here that some forward-thinking researchers are eliminating the permissions ambiguity regarding their own figures by making them available separately under a Creative Commons license.  Where publishers ignore fair use and require permissions to re-use copyrighted work, the guide recommends engaging with them to explain the rationale and referring them to a code of best practices where applicable.  Where fair use is integral to a work, it will be worth finding a publisher willing to rely on it.

The section “Beyond Fair Use” provides the following suggestions if your intended use does not qualify as fair use:

• Modify your intended use
• Ask the owner for permission (which may include paying a license fee)
• Use an openly licensed work
• Use a work in the public domain

Fair Use for Nonfiction Authors is an open access book (licensed CC BY) available online in PDF. If you would prefer a print copy, you can order one ($20) from the Authors Alliance, or check out the copy in Newman Library.  For more information, see the Authors Alliance fair use page, which in addition to the guide includes a FAQ, links to fair use resources, and fair use news.

Through June 15, the Authors Alliance has a crowdfunding campaign for an upcoming guide, Understanding Book Publication Contracts.  If you would like help support that guide, please consider a contribution.

Nicole Cabrera, Jordyn Ostroff, Brianna Schofield, and the Samuelson Law, Technology and Public Policy Clinic. Understanding Rights Reversion: When, Why & How to Regain Copyright and Make Your Book More Available (Berkeley: Authors Alliance, 2015).

Although I am familiar with copyright and licensing agreements for journal articles, I am less familiar with book publishing agreements. Rights reversion for books was a new concept to me, so the first guide published by the Authors Alliance had my attention right away (the group has since published a second guide, Understanding Open Access). This guide is intended for authors who, for whatever reason, may wish to reclaim rights to their books– rights that they transferred to their publishers when they signed a publishing agreement. It’s the result of “extensive interviews with authors, publishers, and literary agents who shared their perspectives on reverting rights, the author-publisher relationship, and keeping books available in today’s publishing environment.” The guide follows an “if-then” organization, referring readers to specific chapters depending on their situation, though I read it straight through (full disclosure: I’m an Authors Alliance supporter).

Early on, the authors define rights reversion and its availability:

“a right of reversion is a contractual provision that permits an author to regain some or all of the rights in her book from her publisher when the conditions specified in the provision are met… in practice, an author may be able to obtain a reversion of rights even if she has not met the conditions stipulated in her contract or does not have a reversion clause.” (p. 6-7)

This guide is intended for authors with publishing agreements already in place; it is not a guide to negotiating contracts (though it may inspire authors to examine the details of rights reversion clauses in new contracts).

The authors note that rights reversion becomes an issue for academic authors especially when their books fall out of print, sales drop, or their publishers stop marketing their books. In such instances, authors may wish to reclaim their rights (so that they can find another publisher to reissue the book or perhaps deposit the book in an open access online repository) but they find themselves constrained by the terms of their publishing agreements or they may not understand how how to go about reclaiming their rights. With these concerns in mind, the Authors Alliance “created this guide to help authors regain rights from their publishers or otherwise get the permission they need to make their books available in the ways they want.”

An important first step in the process is for authors to learn about different ways that they might increase their books’ availability (for example, electronic, audio, and braille versions as well as translations). Next, the guide helps authors determine if they have transferred to their publishers the rights necessary to make their books available in the ways they want. Older contracts may be ambiguous regarding e-book versions; the guide advises authors on how to negotiate the ambiguity. An additional consideration is that permissions for usage of third-party content may no longer be in effect.

Some examples of reversion clauses are provided in chapter 4, pointing out triggering conditions (such as out of print, sales below a certain threshold, or a term of years), written notice requirements, and timelines. It’s important to understand how the triggering conditions are defined, as well as how to determine whether they have been met, and the authors provide good suggestions for finding this information.

The publisher’s plans for the book should be discovered, and the guide emphasizes reasonable, professional conversations with publishers. The success stories throughout the book are particularly valuable in this respect.

Chapter 6 details how to proceed if a book contract does not include a rights reversion clause:

“Ultimately, whether a publisher decides to revert rights typically depends on the book’s age, sales, revenue, and market size, as well as the publisher’s relationship with the author and the manner in which the author presents his request.” (p. 77)

Before requesting reversion, an author should have a plan in place, review all royalty statements, and discover the publisher’s plans for the book. Being reasonable, flexible, creative, and persistent are the golden rules for negotations with a publisher. Precedents can be persuasive, so inquire with friends and colleagues who are authors. If electronic access is important, be aware that many publishers are actively digitizing their backfiles. In this respect, an author might draw a publisher’s attention to the increasing evidence that open access versions don’t harm sales, and can sometimes increase them as a result of improved discovery.

Understanding Rights Reversion is itself an open access book (licensed CC BY) available online in PDF. If you would prefer a print copy, it’s available in Newman Library, or you can order one ($20) from the Authors Alliance. For more information, see the Authors Alliance rights reversion portal, which includes rights reversion case studies that occurred after the publication of this guide. The Guide to Crafting a Reversion Letter, a companion to the guide containing sample language and templates, has just been released.

Thanks to Peter Potter, Director of Publishing Strategy at the University Libraries, for his feedback on this blog post (contact him if you have questions about book publishing- he has a wealth of experience). Thanks also to the Open Library for the cover image.