Open@VT

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.

Virginia Tech is one of nine founding members of the Open Textbook Network Publishing Cooperative, a pilot program focused on publishing new, openly licensed textbooks. The program was launched by the Open Textbook Network (OTN) and aims to increase open textbook publishing experience in higher education institutions by training a designated project manager at each institution and creating a network of institutions.

The Cooperative is a three-year pilot that will establish publishing workflow and processes to expand the development of open textbook publishing in higher education. As a member, Virginia Tech’s project managers, Corinne Guimont (Digital Publishing Specialist) and Anita Walz (Open Education, Copyright and Scholarly Communications Librarian), will gain expertise in project management and technical skills. After the training is complete, a minimum of three open textbooks will be published using the model and tools gained through the cooperative.

“We at Virginia Tech are excited to join the Co-Op because of the opportunity for learning and professional development within a cohort of other institutions,” said Anita Walz. “We will have access to additional technical expertise, workflows, and tools, so that we can create and share more open textbooks with the world.”

Virginia Tech’s involvement in the Publishing Cooperative builds upon previous open textbooks published in the library, including Fundamentals of Business by Stephen J. Skripak and newly released Beta Version of Electromagnetics by Steven W. Ellingson. These books along with other open educational resources adopted by faculty at Virginia Tech have saved 3,111 students $786,398 in course material costs.

At the completion of the three-year pilot, the Publishing Cooperative as a whole will publish at least two dozen new, freely available, textbooks with Creative Commons Attribution (CC BY) licenses.

If you are a VT faculty member interested in publishing an open textbook or other educational resources, please visit http://guides.lib.vt.edu/oer/grants.

Founding members of the OTN Publishing Cooperative include: Miami University, Penn State University, Portland State University, Southern Utah University, University of Cincinnati, University of Connecticut, University of North Carolina at Greensboro, Virginia Tech, and West Hills Community College District (CA).

About the Open Textbook Network: The Open Textbook Network (OTN) is a community working to improve education through open education, with members representing over 600 higher education institutions. OTN institutions have saved students more than $8.5 million by implementing open education programs, and empowered faculty with the flexibility to customize course content to meet students’ learning needs.

VT Publishing and the University Libraries of Virginia Tech are pleased to announce publication of a second, new open textbook: Electromagnetics Volume 1 (Beta). (You can read about the first open textbook in an earlier blog post.) The textbook is in “beta” for a Virginia Tech course in Spring 2018 and will be revised and re-released with LaTeX source code, problem sets, and solutions in Summer 2018.

Electromagnetics Volume 1 (Beta) by Steven W. Ellingson is a 224 page, freely available, peer-reviewed, full color, print and digital open educational resource. It is intended to serve as a primary textbook for a one-semester first course in undergraduate engineering electromagnetics within the third year of a bachelor of science degree program.

Cover design: Robert Browder; Cover image: (c) Michelle Yost. Total Internal Reflection (cropped by Robert Browder) is licensed CC BY-SA 2.0

The book is the work of Steven W. Ellingson, Associate Professor in the Department of Electrical and Computer Engineering at Virginia Tech, in collaboration with the Scholarly Communication office of Virginia Tech’s University Libraries and VT Publishing. As collaborators with Ellingson, the University Libraries provided grant funding, overall project management, guidance on open licensing, attribution, student works, formats and styles, managed development and production processes, coordinated peer review, reviewed manuscripts (editorial and technical), provided technical specifications, and navigated print and distribution solutions.

A no cost downloadable version of Electromagnetics Volume 1 (Beta) is available here. A full color softcover printed version (ISBN: 978-0-9979201-2-3) is available at the cost of production and shipping from Amazon.com.

The LaTeX authored text includes extensive use of mathematical equations, figures, adapted, and custom-created and openly licensed diagrams, worked and narrative examples. This book employs the “transmission lines first” approach, one of three approaches to teaching electromagnetics. However, other teaching approaches may find the work relevant, since its release under a Creative Commons Attribution-ShareAlike 4.0 license legally allows addition, adaptation (with required attribution), and redistribution of content. The resulting work is of significant value in opening new possibilities for teaching and learning: Electromagnetics Volume 1 (Beta) by Ellingson is the first known openly licensed textbook for electromagnetics.

Electromagnetics Volume 1 (Beta) will be field tested in Virginia Tech’s ECE3106 Electromagnetic Fields course in Spring 2018, and then revised and re-released in Summer 2018 as a text adoptable for courses beyond Virginia Tech. LaTeX source files, problem sets, and solutions will be released contemporaneously in Summer 2018. The editor and author of this book encourage feedback from individuals, classes, and faculty viewing this book. Feedback and suggestions may be contributed using the online annotation tool Hypothes.is, via a feedback form, or by emailing publishing@vt.edu. A Volume 2 and combined Volumes 1 & 2 are planned.

The intent of creating a remixable book for both internal use and free public release exemplifies trends within the Open Education movement and in higher education in general. These trends mirror aspects of the open source software movement and include public sharing under open licenses which allow contributions and adaptation (such as Creative Commons licenses), rewarding, valuing, and incorporating new ideas pertaining to teaching and learning, building collaborative faculty networks across multiple institutions, giving credit where due, and involving students as active contributors to course goals and/or the work of curricula and course design. Free public access is a start, but the possibilities for faculty, students, and others to create, openly license and share, freely adopt, adapt with attribution, and build open source systems for adaptation and sharing expand meaningful possibilities far beyond free access. These freedoms bode well for expansion of purposeful and engaging teaching and learning, the ability to leverage academic freedoms for broad, positive impacts on the common good, thoughtful conversations about ethics, incentives, voice, and access in the academy, and the advancement of innovative pedagogical practices and publicly available scholarly research which are already beginning to bear fruit.

I hope that many other faculty and institutions will take advantage of opportunities to create, adopt, adapt, and share openly licensed materials to fit their needs, the distinctive teaching and learning challenges and opportunities in their disciplines, the needs of their students, and beyond.

This textbook is part of the Open Electromagnetics Project led by Steven W. Ellingson at Virginia Tech. The goal of the project is to create no-cost openly-licensed content for courses in undergraduate engineering electromagnetics. The project is motivated by two things: lowering learning material costs for students and giving faculty the freedom to adopt, modify, and improve their educational resources.

Publication of this book was made possible in part by the Virginia Tech University Libraries’ Open Education Faculty Initiative Grant program which is led by Anita Walz, Scholarly Communication office, at the University Libraries, Virginia Tech. The goal of the grants program is to to encourage the use, creation, and adaptation of openly licensed information resources to support student learning. The author also thanks VT Publishing colleagues for their many contributions.

For more information on the origins of Creative Commons licenses, watch the short video “Get Creative: Being the Origins and Adventures of the Creative Commons Licensing Project” or visit the Creative Commons website.

About the author of Electromagnetics Volume 1 Beta: Steven W. Ellingson is an Associate Professor at Virginia Tech in Blacksburg, Virginia, United States. He received PhD and MS degrees in Electrical Engineering from The Ohio State University and a BS in Electrical & Computer Engineering from Clarkson University. He was employed by the US Army, Booz-Allen & Hamilton, Raytheon, and The Ohio State University ElectroScience Laboratory before joining the faculty of Virginia Tech, where he teaches courses in electromagnetics, radio frequency systems, wireless communications, and signal processing. His research includes topics in wireless communications, radio science, and radio frequency instrumentation. Professor Ellingson serves as a consultant to industry and government and is the author of Radio Systems Engineering (Cambridge University Press, 2016).

As part of Open Access Week, the University Libraries and the Graduate School offered a travel scholarship to OpenCon 2017, a conference for early career researchers on open access, open data, and open educational resources. From a pool of many strong essay applications, we chose Alexis Villacis, a Ph.D. student in Agricultural and Applied Economics. Alexis attended the conference in Berlin, Germany on November 11-13, and sent the report below. Be sure to check out the OpenCon 2017 highlights.

Alexis (left) at an OpenCon workshop

Alexis Villacis writes:

The progress of science and access to education varies widely geographically, and sometimes are very limited due to economic, cultural and social circumstances. Open Access, Open Education, and Open Data are key to support those who are left behind and bring empowerment to the next generation. OpenCon brings together the worldwide champions who are working towards the advancement of the Open Movement. Students, early career academic professionals, and senior researchers all come together under one roof to share their initiatives. Participants hear their inspiring stories, from Canada to Nepal, of sparking change during a three-day conference; a conference I am grateful to have had the opportunity to be part of, as a representative of Virginia Tech.

Over these three days, participants showcased how Open is being advanced around the world. The discussion centered on how often higher education models (knowledge access, research questions, and research funding, among many others) marginalize underrepresented scholars and students. It was thought-provoking and sometimes shocking to hear how our western ways of knowing have colonized access to information and how this has impacted the progress of R&D in other parts of the world.

Sharing with participants from other countries and hearing the challenges they face every day made me contrast our everyday realities and the privilege we have at VT. A privilege we take for granted in our everyday lives, where access to all types of tools, research, and content is one click away through our computers. We, as an institution of higher education, promote and share access to knowledge and new technologies throughout Virginia and beyond. The impact of these transfers is what keeps our society thriving every day, but where would we be if this access were restricted to us? Perhaps, VT as a Land Grant Institution would not exist at all, the state of Virginia would not be what it is today and neither many other parts of the US.

As I walked through the halls of the Max Planck Society, where the conference was held, I kept wondering: is this not what we are doing today? What changes are we withholding from the rest of the world by limiting access to data, knowledge, and education? The essence of this and the significance of Open Access clearly goes beyond journals and data, and it is also about social justice, equity, and the democratization of knowledge. We Hokies can make a difference in Open Access. More importantly, we are the key players called to work towards its advancement.

As research becomes increasingly digital, it’s becoming more important to ensure a findable and unchanging scholarly record.  Researchers are probably familiar with the digital object identifier (DOI), which in URL form provides a persistent link to articles (and more), and libraries and publishers provide redundant archiving to ensure  scholarship is preserved for the long term.

However, it’s also important to make sure links (other than DOIs) in articles work, and to make sure web pages represent what the author saw when she cited them.  Some journals are aware of these issues, and I’ve noticed a few authors who employ URLs from the Internet Archive’s Wayback Machine in their manuscripts.  Thinking back to my last article, there are probably some links that won’t work five (or twenty) years from now, or links resolving to web pages that won’t accurately represent what I was referring to at the time.

These problems are usually referred to as link rot and reference rot.  Link rot means a URL can no longer be found (your browser returns a 404 error); reference rot means the information cited at a URL has either disappeared or changed.  Research has shown 50% of the links in Supreme Court decisions from 1996-2010 had reference rot, one in five articles suffers from reference rot, and three out of four URI references lead to changed content.  In the last article, the authors say these problems raise “significant concerns regarding the long term integrity of the web-based scholarly record.”  In this era of fact-checking and “fake news,”  it’s more important than ever to stabilize the evidence base built in peer-reviewed articles.

To help address this problem, Virginia Tech’s University Libraries is pleased to announce that we are now a registrar for Perma.cc, a service to provide archiving of web pages for research purposes.  Researchers at Virginia Tech will be able to archive, manage, and annotate an unlimited number of web pages with persistent shortlinks for citing, and will also receive local support.

Including a Perma.cc link in a citation or footnote may depend on the citation style you are using, but a general recommendation is to include the original URL, followed by “archived at” and the Perma.cc shortlink, for example:

36. Scott Althaus & Kalev Leetaru, Airbrushing History, American Style, Cline Center for Democracy (Nov. 25, 2008), http://www.clinecenter.illinois.edu/airbrushing_history, archived at http://perma.cc/G8PW-798L.

If you click on the Perma.cc link above, you can see how the web page looks in archived form.  In addition, the time of capture is recorded, there’s a link to the live page, and you can download the archive file (under “show record details”).  Perma.cc is intended for non-commercial scholarly and research purposes that do not infringe or violate anyone’s copyright or other rights.   Web pages to be archived should be freely available without payment or registration.  Additionally, some web pages employ a “noarchive” restriction, which Perma.cc archives but makes private.  In other words, the shortlink can be shared, but is available only to the researcher and upon request.

There are some advantages to using Perma.cc over the Wayback Machine (and the Internet Archive is a supporting partner of Perma.cc). Perma.cc provides a more thorough, accurate capture in two forms, a web archive file (WARC), and a screenshot (PNG).  Perma.cc also provides persistent shortlinks that are more convenient for citing, and enables researcher management of the links (with folders, annotation, and public/private control).

Other features of the Perma.cc system include:

• Researchers will be added as organizations, and can add other users within that organization, such as lab members or collaborators
• A bookmarklet and extension are available for easy use in a browser (users must be logged in)
• Links can be deleted within 24 hours

See more information about creating Perma.cc records and links, and check out the FAQ.  Perma.cc is built by Harvard’s Library Innovation Lab, and in alignment with its focus on preservation, the service has a contingency plan and is also open source.

To get started, send an email to permacc@vt.edu and request an account (or to be added as an unlimited user if you’ve already signed up).  You can also send questions and problems to this address, or you can use the Perma.cc contact form.