Open Access, Open Data, and Open Educational Resources

Category Archives: Copyright

Celebrate Fair Use Week with the University Libraries at VT – Feb. 22-26!

The University Libraries are excited to announce our first annual Fair Use Week celebration! Starting on Monday February 22nd, Fair Use Week is an event to “celebrate the important doctrines of fair use in the United States and fair dealing in Canada and other jurisdictions” and promoted by the Association for Research Libraries.

Fair Use Week logo

In addition to the Fair Use Week events, the University Libraries will have an interactive exhibit on the 2nd floor of Newman Library (near the Alumni Mall entrance) from Monday February 22 through Friday March 4. Please join us for one or more of the events below!

  • Monday, 2/22, 4:30-5pm, Newman Library, 2nd floor
    Fair Use Week Exhibit Opening – enjoy some light refreshments while exploring the interactive exhibit.
  • Tuesday, 2/23, 9:30-10:45am, online*
    Workshop: “Is it a Fair Use? A Hands-On Discussion”
    NLI Credit available.
    *Contact Ginny Pannabecker at for online meeting information.
  • Tuesday, 2/23, 11:00am-Noon, Newman Library, Multipurpose Room (first floor)
    Workshop: “The New International Movement to Standardize Rights Statements – And How We’re Participating”
    NLI Credit available.
  • Wednesday, 2/24, 10:00-11:00amNewman Library, Multipurpose Room (first floor)
    Discussion: “Behind the Scenes of the Fair Use Week Exhibit: How We Made Our Copyright Decisions”
    NLI Credit available.
  • Wednesday, 2/24, 1:25-2:15pmNewman Library, Multipurpose Room (first floor)
    Workshop: “Is it a Fair Use? A Hands-On Discussion”
    NLI Credit available.

So, what is “fair use” and why do we think it’s important enough to celebrate it for a whole week? 

Fair Use is a four-factor exemption of U.S. Copyright Law 17 U.S. Code § 107 which allows anyone to:

  • Copy
  • Re-distribute
  • Perform
  • Electronically transmit
  • Publicly display
  • Create new versions of others’ copyrighted works

…without permission.*

*When the potential use is deemed to be “fair” rather than “infringing.”  Only a court can decide what is truly “fair use.” However, U.S. law allows anyone to conduct a well-informed fair use analysis in good faith to determine if their proposed use of copyrighted material is more fair or more infringing.

For an example of Fair Use in action and an entertaining video explaining some foundational U.S. Copyright and Fair Use information, take a look at Professor Eric Faden’s “A Fair(y) Use Tale.” The version embedded below was re-uploaded to YouTube (under compliance with the video’s CC BY NC-SA 3.0 license) in order to add transcribed subtitles and captioning.

Thank you for taking a moment to find out more about Fair Use, and we hope to see you at one or more of the University Libraries events!

Thanks to the University Libraries’ 2016 Fair Use Week team: Virginia (Ginny) Pannabecker, Anita Walz, Scott Fralin, Robert Sebek, and Keith Gilbertson!

A New Issue of Virginia Libraries on “Exploring Openness”

Virginia Libraries cover

Virginia Libraries (cover design by Brian Craig)

Virginia Libraries, the journal of the Virginia Library Association, has recently undergone some significant changes. Formerly a non-peer reviewed quarterly, it’s now an annual peer-reviewed volume, with a first issue on the theme “Exploring Openness” (full disclosure: I was a peer reviewer for two articles submitted for this issue, and fellow blogger Anita Walz authored an article on OER). A broad range of open-related topics is addressed, but for the sake of brevity I’d like to highlight two standout articles (please do check out the full table of contents).

The hype over MOOCs may be past, but I think dismissing them completely is premature. In Just How Open? Evaluating the “Openness” of Course Materials in Massive Open Online Courses (PDF), Gene R. Springs (The Ohio State University) examines the status of texts assigned in 95 courses offered by Coursera or edX. Of 49 courses listing a textbook, 20 of these were freely available; of 44 courses listing or linking to non-textbook readings, 31 linked to or embedded only freely available resources. It’s great to have this quantitative data on MOOC openness. There’s much more data in the article, which is a welcome contribution to the MOOC literature.

The second standout article in this issue is Contextualizing Copyright: Fostering Students’ Understanding of Their Rights and Responsibilities as Content Creators (PDF) by Molly Keener (Wake Forest University). It’s important that students know about the bundle of rights known as copyright both as consumers and creators in the knowledge ecosystem. Keener’s information literacy instruction employs scenarios relevant to students (included as an appendix) and incorporates copyright-related aspects of popular culture. Clearly such instruction is needed:

Most students are unaware that they own copyrights, or that simply because a photograph is free to access online does not mean that it is free to be reused.

Every university should have this kind of instruction to help students understand the environment in which information is created and used. Keener’s article is highly recommended.

While there’s almost everything to like about the new direction Virginia Libraries is taking, one oversight by the editorial board should be pointed out. At the bottom of the table of contents (PDF) the journal states the following:

The Virginia Library Association firmly espouses open access principles and believes that authors should retain full copyrights of their work. The agreement between Virginia Libraries and the author is license to publish. The author retains copyright and thus is free to post the article on an institutional or personal web page subsequent to publication in Virginia Libraries. All material in the journal may be photocopied for the noncommercial purpose of educational advancement.

It’s great that authors can retain copyright, but a journal cannot “firmly espouse open access principles” without openly licensing the content. Peter Suber succinctly defined OA as “digital, online, free of charge, and free of most copyright and licensing restrictions.” This means content should not just be available but also openly licensed (many get the first part but not the second). Leading OA journals have published thousands of articles under a Creative Commons Attribution (CC BY) license, which gives re-use permissions in advance. It’s also the license for this blog. Librarians should be more aware than most about copyright restrictions for sharing research, and Anita’s article in this issue gives a full list of Creative Commons licenses. Hopefully the editorial board will make Virginia Libraries fully OA by licensing future issues CC BY.

The co-editors of this special issue, Candice Benjes Small and Rebecca K. Miller, deserve praise for its quality and for helping the journal begin a new direction. Virginia Libraries is now seeking a volunteer to be the new editor (see the position description). Interested applicants should send a cover letter and résumé to Suzy Szasz Palmer at by July 24, 2015.

Book Review: Reclaiming Fair Use

Reclaiming Fair Use Reclaiming Fair Use: How to Put Balance Back in Copyright by Patricia Aufderheide and Peter Jaszi was published by the University of Chicago Press in 2011. It’s a well-written history of fair use interpretation and an important corrective to over-cautiousness in asserting user rights. Fair use is a provision of U.S. copyright law that, broadly speaking, allows use of copyrighted works when the social benefit is greater than the owner’s loss. The law sets out four factors which are used to determine whether fair use can be employed: the nature of the use, the nature of the work used, the extent of the use, and its potential economic effect. But since there is no bright line or definitive calculation of the four factors (and other factors which may have bearing), the effect has been limiting (p. xi):

We saw that when people do not understand the law, when they are constantly afraid that they might get caught for referring to copyrighted culture- whether an image, or a phrase of a song, or a popular cartoon character- they can’t do their best work.

Aufderheide and Jaszi feel that the four factors (and checklists based on them) have been hindrance (p. 183):

People love checklists, because they hope that the lists will do their fair-use reasoning for them. But checklists tend to be more trouble than help. Sometimes a checklist simply discourages fair use in situations where the user might have an adequate rationale not captured by the list. More often, checklists simply lead to further confusion. Focused on the four factors, they treat the factors as if they had a concreteness that they do not. Those four factors have been widely interpreted by judges over the years.

Instead they distill fair use evaluation into three questions (p. 24 and 135):

Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose? Was the amount of material taken appropriate to the purpose of the use? Was it reasonable within the field or discipline it was made in?

The first and third questions are especially important in the revitalization of fair use. While copyright has become “long and strong” in recent decades, fair use has made a comeback since the late 1990s to lend the law more balance. Fair use interpretations have been primarily strengthened in two ways: first through the concept of transformativeness (use for a different purpose than originally intended), and more recently through development of codes of practice for particular fields. Both are now major considerations by courts (p. 80). Aufderheide and Jaszi have been leaders in developing best practices for various communities, first with documentary filmmakers (a process related in Chapter 7) and most recently as contributors to initial work toward a code of practice for the visual arts (PDF).

Codes of best practice “represent a common understanding in a community of practice” (p. 120) and emphasize demonstrating good faith (e.g. through attribution). The codes developed thus far are in agreement on three areas of fair use: critique, illustration, and incidental capture. The codes are also balanced in the sense that the communities (e.g. documentary filmmakers) are often creators as well, so they must take into account how their own work might be used. Aufderheide and Jaszi emphasize that, like a muscle, fair use is strengthened by use– it is one arena in which behavior affects the law, not vice-versa. In addition to communities of practice, the law provides exceptions for certain kinds of use, such as the educational exemptions in Section 110-1 and 110-2.

While the authors champion fair use, they are clear about the problems that remain. In the digital environment, many works are leased rather than owned, and contracts may include language limiting fair use rights. The Digital Millennium Copyright Act (DMCA) of 1998 made it illegal to override digital encryption, so exercising one’s fair use rights becomes impossible. Reliance on the courts to interpret fair use has its disadvantages, and one casualty has been music sampling. The interaction of three court cases has severely limited fair use for music (p. 90-93). Formal copyright registration entitles owners to statutory damages, and the potential maximum has a chilling effect (p. 32). The courts have also expanded secondary liability. The authors call for for advocacy on DMCA reform as well as on orphan works.

Aufderheide and Jaszi are unexpectedly critical of free-culture and commons advocates. They indict free-culture activists for making copyright the villain (p. 48) and seeking alternatives elsewhere rather than acknowledging balancing effects of copyright law such as fair use (p. 54):

The commons rhetoric… celebrates a particular vision of the public domain as a space entirely free of intellectual property constraint, while either ignoring or slighting exemptions and balancing features that limit copyright owners’ monopoly control.

Yet the commons is growing steadily, and search engines now allow users to filter images by license. And in their discussion of the public domain (p. 141), the authors fail to mention the Creative Commons Zero (CC0) license for intentionally placing works in the public domain. While commons advocates may have overlooked fair use, the unnecessary distinction between the two approaches is contradicted by the authors’ own work on a code of practice for OpenCourseWare, which relies on both open licensing and fair use.

The international environment for fair use is covered in Chapter 10. Most countries lack a fair use provision, but have a much lower risk of litigation and lack statutory damages for infringement. Because fair use is the exception rather than the rule, harmonization of copyright through treaties is a continuing threat to it.

Fair use is deliberately vague, and always a case-by-case decision. To Aufderheide and Jaszi, this is a feature, not a bug (p. 163):

Creators benefit from the fact that the copyright law does not exactly specify how to apply fair use…. Fair use is flexible; it is not uncertain or unreliable.

Reclaiming Fair Use features inset boxes throughout the text, “Fair Use: You Be The Judge” (with answers at the back) and “True Tales of Fair Use,” and has five useful appendices, including a template for a code of best practices and a section on myths and realities of fair use. While it contains more background than some readers may desire (they can go straight to Chapter 9, “How To Fair Use”), this book is a valuable perspective on fair use and always interesting and well-written.

More information about fair use, including codes of practice, can be found at the Center for Media & Social Impact at American University, which Aufderheide co-directs. In addition, Jaszi provided testimony on fair use to a House of Representatives subcommittee in January (his testimony begins at 39:00 in the video, and his written submission is available in PDF).

Reclaiming Fair Use is available as an e-book through the University Libraries.

Copyright and Article Archiving

Last week there was a flurry of exchanges on copyright and author manuscripts, unintentionally set off by Kevin Smith’s clarifying post Setting the record straight about Elsevier. I had thought that my right to archive, given in the publishing contracts I have signed, also allowed me (implicitly) to assign whatever license I liked to my own versions. Smith (and others) make it clear that a copyright transfer applies to all article versions. So you can archive your article if permitted, but you should attach the publisher’s copyright statement, and you are not free to attach a Creative Commons license. I’m currently in the process of correcting this for my archived articles, to which I erroneously assigned a CC-BY license. And I have updated my CC-BY recommendation in the previous post on the Elsevier fallout to make it clear that this can’t be done if the copyright has been transferred.

Smith followed up with two posts (It’s the content, not the version! and So what about self-archiving?), Nancy Sims posted, and Michael Carroll addressed this issue back in 2006. All are worth reading.

These posts reinforce the importance of retaining copyright whenever possible. But the fact remains that this is not always easy to do. The suggestions of some to “never sign over copyright” or “just put it in the public domain” I don’t find very helpful. In my niche of information science, there are very few OA journals, and most are owned by the large multinational conglomerates. While I have transferred copyright in all of my peer-reviewed articles, I have archived all of the post-prints. In the one case in which I attempted to retain copyright, the journal simply refused (and my co-authors did not seem particularly interested in putting up a fight). Placing an article in the public domain, it seems to me, would likely result in journal refusal (if I remember correctly, on most copyright transfer forms this option is only available to federal government employees). Additionally, since the public domain does not require attribution, most authors would not want to explicitly give that up.

Tenure-track faculty are under pressure to publish, and copyright transfer occurs at the end of a very lengthy process. Not many authors will be willing to start this process over if they can’t come to agreement with the journal about copyright. If authors are doing their best to make open the default, then they shouldn’t be made to feel badly about copyright transfer, particularly in cases where they can provide access through archiving. And if they are willing to negotiate for that right where it is not given, so much the better. But sometimes we have co-authors who are more interested in publication than copyright or archiving. So it’s more important than ever to address these issues in advance: to identify an OA journal (or one that explicitly allows archiving), and to ensure that co-authors are in agreement well before time to sign a publication agreement. Until more OA journals are developed in more fields, that is the best we can ask for.

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