give it away before someone takes it

and tries to sell it back to you

Dr Dean Taciuch
English Department
George Mason University

 

Academics have more to lose in the copyright wars than most people do. We are not only the source of much of the "content" in the world. We are -- through our teaching and research -- among the major conduits and consumers of the content that others provide. We have a vested interest in keeping information flowing as cheaply, widely, and quickly as possible. We need a rich, diverse, affordable, and accessible information ecosystem to do our jobs.
Siva Vaidhyanathan "Copyright as Cudgel"
originally published in Chronicle of Higher Education (Aug 2, 2002)

In November 2002, the TEACH Act (Technology, Education, and Copyright Harmonization Act) was authorized, with little notice in the academic world except from librarians, who, as we shall see, are more attuned to issues of free speech and fair use than most other academics. The American Library Association, in fact, provides some of the clearest overviews and explanations of TEACH. The Act is meant to harmonize traditional academic classroom uses of copyrighted material with the Digital Millennium Copyright Act (DMCA). Specifically, TEACH was written to address Distance-Learning (DL) courses offered by accredited, non-profit educational institutions. In some ways, the Act extends the concept of "fair use" by, for example, allowing short film clips to be used in a film class conducted online. Such uses would not be permitted under the DMCA, which aims to prevent unauthorized distribution of copyrighted digital works. The initial use, online or off, of copyrighted materials would be considered "fair use" under some conditions, but without precautions unauthorized distribution can occur "down the line," as students or others make unauthorized copies. Because digital media is so easily duplicated and distributed, the use of any copyrighted material in online courses was questionable. The TEACH Act allows the use of such copyrighted materials in Distance Learning courses if certain criteria are met. These criteria include access-restriction and copy-protection; institutions must limit access to registered students, for a limited time, and prevent further copying and dissemination of the copyrighted materials. In short, the copyrighted materials can be presented to the class during the course, but students may not make personal copies.

The TEACH Act goes to great lengths to prevent unauthorized access to educational materials. One may notice how much more restrictive terms of use are in the digital realm: textbooks do not self-destruct at the end of a term, photocopies are not illegal for personal use — even the rules for the use of photocopied course packs do not require that students destroy the packs at semester's end. Yet these actions are required by TEACH, and by the Multimedia Guidelines in place at GMU. The restrictions themselves were intended to apply to Distance Learning courses, but the guidelines in place at GMU and other institutions are being applied to all web-based multimedia content.

Of course, there are reasons for such restrictions on digital materials, chief among them the ease of making digital copies, and the perfect quality of such copies. By comparison, a copy of a copied article in a course package is degraded, and will degrade further as copies are made from previous copies. A .pdf file suffers no such degradation. A copy of a 20-page article will cost several dollars at a copy center, whereas a digital copy "costs" a few mouse clicks and some disk space. So publishers are rightly worried about unrestricted copying of their materials.

But educators should not be worried about such copying. The issue becomes clearer when the educators are themselves the authors of the material being restricted. An article written for an academic journal has no monetary value, which is not to say that it is worthless — its value is measured in other currencies. Professional reputation, promotion, tenure, access to grants, and the like are rewards for academic publication. But the purpose of academic publication is not merely to increase one's own professional standing and financial situation. The larger purpose of academic publication is the expansion of knowledge; academics publish in order to share their work, so that others may build upon it, as they have built upon the work of others before them.

This is the tradition of scholarship we teach our students; the academic tradition of citation is all that is required in order to use, i.e. quote from, otherwise copyrighted resources. In this sense, academic research has traditionally been "free": generally free of cost, but more importantly free to use in any way as long as the original author is cited. The works found in restricted access databases are not free in either sense of the term: students and academics pay for access. Although students and faculty are shielded from paying for database access directly, a significant portion of a university library's budget goes to electronic journal subscriptions, often paid for in part by student fees.

The traditional concept of "fair use" is vanishing, and not just in electronic documents. In fact, publishers seem to be using current access-restrictions on digital media to restrict traditional media as well. For example, I recently wrote an 1500 word article on the poet John Ashbery for an encyclopedia of 20th Century American Poetry to be published by Facts On File. The authors of the encyclopedia articles were told by the editor, a very reasonable man, that the publisher would not allow more than three lines of a single poem to be quoted in any article. This, we were told, was "fair use." The three-line limit is particularly ridiculous for Ashbery, as he has in his career published book-length poems as well as single line poems (which I could have quoted in their entirety, violating traditional concepts of fair use while remaining within the Procrustean guidelines of a timid publisher). Why would the publisher insist on such a limit to fair use? Whose rights are being protected? Ashbery's? His publishers'? Facts on File's? What about the rights of scholars and critics?

Perhaps the publisher is fearful of a lawsuit, although a printed article that quotes even a dozen lines of a long poem would not be considered a copyright infringement. More likely, the publisher is looking towards a digital version of the encyclopedia; in this digital domain, restrictions such as TEACH apply. Since a print text can be digitized, publishers will take the simplest, most restrictive, route: place the restrictions into the text now to avoid problems in the future. The TEACH Act, which was intended merely to allow use of copyrighted materials on Distance Learning courses, is being used, often indirectly, to restrict access to all digital media, online and off.

This quiet acceptance of the loss of fair use is surprising, given that writers (and publishers) have for so long relied upon fair use for such things as reviews. Imagine a review of a novel which cannot quote from the original, a film review which cannot use stills or clips, a review of an art exhibition which cannot show the artwork. Actually, you don't need to imagine it; it is here, outlined in GMU's Multimedia Fair Use Guidelines. At first glance, these guidelines appear quite fair, allowing, for example, up to three minutes of video, 1000 words of text, or five images. But the content restrictions are not the problem. The access restrictions (and they are very much in keeping with TEACH, as they must be) are listed below:

These restrictions apply even though proper citations are given, and even though the works used in the projects fall within the "fair use" guidelines. These restrictions say, in essence, that students and faculty may not publish their own scholarship.

Let me repeat that: The GMU Multimedia guidelines prohibit students and faculty from publishing their own scholarship if it uses outside resources.

The fact that no one has noticed this is shocking. If these guidelines were strictly applied, this article could not be published online. Indeed, English Matters would become a subscription-based, access-controlled publication. That is not what web-publishing is about, but it is what web-publishing will become unless something is done soon.

The Current Copyright Situation

I have a copyright on this article which lasts for 70 years after I'm dead. If English Matters, the English Department, or the University decides they own the copyright, the term is 95 years. What am I protecting? Or rather, since I didn't ask for this property right, what is being protected? And from whom am I being protected?

Let's say the University claims this essay, and the journal in which it appears, as its property (I did write it while under contract to the University, and by extension the State of Virginia, and I am, after all, a contract employee of said State and University). The copyright would extend for 95 years. The University could restrict access to the journal (after all, they own it), perhaps making it available for subscribers. The University, or the State, could then charge subscribers for the right to read my words. Perhaps I would get a free subscription, perhaps not.

A similar scenario in fact plays out regularly in academia. Scholarly publication is rewarded by promotion, tenure, and increased salary. Most published articles are not financially rewarding in and of themselves , although books may be, particularly for a fiction writer who has a novel optioned by a movie studio or television network. Scholarly journals are increasingly available online, which is a good thing. But access to these journals is prohibitively expensive for individuals; subscription rates are set for libraries and Universities (which, as we know, have plenty of money for these sorts of things). The academics who write these articles get none of the subscription fees; unlike some media productions, there are no royalty payments for online readership. Nor should there be.

Again: whose rights are being protected by copyright? The traditional answer would be the content creators. But that is increasingly not the case. The rights being protected are those of content providers, and what they provide is access to works they have not created themselves, works for which the actual creators are generally under-compensated, if compensated at all.

Of course, monetary rewards allow us to continue our teaching and our research, but the premium currency in academia is publication and citation. Even those of us for whom teaching is primary realize one importance of publication: name-recognition. It isn't just money, or job security, or research leave — it is the respect from peers, as well as the desire to increase and share knowledge, which drives most academics.

Given the above, why are so many academic publications under full copyright protection? By full copyright protection, I mean the automatic, 70-years after I'm dead, no use without permission copyright designated by ©. Do these protections really serve us? Does full copyright protection help us get our works read?

Central to the contemporary problems with digital copyright and digital restrictions is a monolithic attitude towards copyright, an "all-or-nothing" approach which seeks to control all access to copyrighted material, and seeks to make all media copy-protected. This "all-or-nothing" approach is particularly damaging to academics; as digital media are put under an "all-or-nothing" copyright, the "fair use" provisions upon which academic discourse relies are severely eroded, perhaps destroyed.

Different Approaches to Copyright Conundrums

Several organizations have begun to develop alternatives to the "all-or-nothing" notion of copyright. Stanford Law Professor Lawrence Lessig, for example, helped found The Creative Commons in an effort to provide such alternatives. The Massachusetts Institute of Technology has begun a revolutionary OpenCourseWare project, placing all of its course materials online, partly in an attempt to undermine restrictive Distance Learning initiatives: MIT OpenCourseWare materials are free for non-commercial use, but anyone who incorporates MIT's materials into their own project must release the new project under the same conditions. But before these alternatives can be examined, the issue of ownership of educational materials needs to be unpacked.

CETUS "unbundling" model

The CETUS (The Consortium for Education Technology for University Systems) "unbundling" model was an attempt to balance what was becoming, in 1997, an increasing problem:

Too often copyright is assigned to publishers without the author's having reserved rights to future uses such as the incorporation of elements of a copyrighted work into his or her next work or the photocopying of the author's journal article even for his or her own teaching and research. Moreover, revenue from sales of many faculty works--notably research articles--often flows to third parties, much to the frustration of universities and funding agencies which underwrite most works produced at the university and which then find themselves in the position of having to buy the work back in the form of subscription fees, royalty payments, and other current and future costs.

CETUS, Ownership of New Works at the University, (6-7)

Key to CETUS' model is the idea that copyright is divisible, and that new approaches are required by changing technology. The traditional role of copyright (as an agreement between authors and publishers) changes dramatically with digital technology, and the ubiquity of the World Wide Web, which has made authors into publishers. In this new digital world, copyright needs to be readdressed, and the rights must be renegotiated.

In order for an unbundling of rights to proceed, ownership of the work must first be determined. In the CETUS model, three measures determine ownership:

Work produced as part of the instructor's regular duties, would generally be owned by the instructor under this measure. If, for example, an instructor produces course material for her class, she generally initiates the work and has effective control of the work; if the institution provided a standard level of support (access to computers and software), then the compensation factor would also weigh in favor of instructor ownership. Only when the institution provides an extraordinary level of support (access to hardware / software not generally available, additional financial remuneration, etc) would the institution have a claim to ownership. And even then, the institution's ownership would be mitigated by the first two measures (initiation and control).

But the issue of determining ownership is merely a step towards a larger goal, that of more creatively licensing the works. Rather than agreeing to an exclusive distribution agreement (which most publishers now insist upon), the CETUS model allows for the owner (instructor or university, or even both under a shared ownership) to reach agreements regarding use of the material within and outside of the university community. For example, if material is owned by the instructor, she may license certain uses to the institution:

Unfortunately, the CETUS homepage has not been updated since June 1997. The passage of the DMCA in 1998 appears to have ended this effort at reconsidering the "all-or-nothing" approach to copyright. At the very least, the organization appears moribund.

Creative Commons Licenses

<http://creativecommons.org>

A more recent attempt to rebalance copyright is the formation of The Creative Commons (CC). In the wake of the DMCA and the Sonny Bono Copyright Extension Act of 1998, Lawrence Lessig and others at Harvard and Stanford established an organization dedicated to preserving something of the public domain. Now based at Stanford Law School, Creative Commons provides a series of licenses as alternatives to standard copyright. Creative Commons offers these licenses free of charge in several formats, including webpage buttons, short "Commons Deeds," full legal texts, and machine-readable code. In addition, the Creative Commons site allows users to generate "metadata" to insert into digital documents; this information will allow search engines and other devices to recognize CC-licensed content.

The four main Creative Commons licenses:

Attribution: the licensor permits others to copy, distribute, display, and perform the work. In return, licensees must give the original author credit.

No Derivative Works: the licensor permits others to copy, distribute, display and perform only unaltered copies of the work — not derivative works based on it.

Non-Commercial: The licensor permits others to copy, distribute, display, and perform the work. In return, licensees may not use the work for commercial purposes -- unless they get the licensor's permission.

Share Alike: The licensor permits others to distribute derivative works only under a license identical to the one that governs the licensor's work.

These four basic licenses may be combined in 11 different ways: the Share Alike and No Derivative Works licenses are mutually incompatible and may not be combined with each other, but the others can be used alone or in combination.

In addition, Creative Commons promotes the dedication of works to the Public Domain and, as a special project, the Founder's Copyright, which extends for 14 years with one possible 14-year renewal (which was the original term of U.S. copyright established in 1790).

The purpose of the CC licenses is to promote a more open approach to copyright; since authors no longer need to apply for nor renew copyrights, and due to the recent Sonny Bono Copyright Extension, nothing will enter the public domain in the US until at least 2019. The Extension was promoted by content owners (most prominently by Disney, in whose honor the bill was rather derisively known as the Mickey Mouse Copyright Extension Act). What Creative Commons refers to as "copyright by default" could dramatically reduce the materials freely available to the public. It is important to note that "freely available" does not necessarily mean "available for free"; theaters can charge admission to a performance of a Shakespeare play, even though the material is public domain.

But "freely available" does mean free access to at least some version of the material. A publisher can, for example, copyright and copy-protect an electronic edition of Shakespeare, but the text itself is widely available elsewhere without restriction. This free access is what academic research is based upon; it is what libraries are for. Again, free access doesn't necessarily mean access without cost — it means access with few if any restrictions. Library databases are not, in either sense of the term, free. Not only do they cost money, but once the subscription is paid, the materials are still restricted.

The CC licenses are clearly inspired by the open-source software movement, which itself has been unfairly portrayed as some sort of hacker-communist underground. The distinction between free as in beer and free as in speech (as the GNU folks put it) is easy to see. The Commons licenses are not a give-way (except for the Public Domain dedication); they are a means by which the creators of scholarship can control the limitations placed on access to information they wish to share.

Open-Source Electronic Publishing

Currently, the problems of copyright and research is most clear in the sciences, when publicly funded research is access-restricted by overly-zealous publishers. Among the responses are the Public Library of Science <http://www.publiclibraryofscience.org> , which provides access to two new "open-source" (free access) peer-reviewed journals. This item in their FAQ addresses the concerns I've detailed above:

I have free online access to all the journals I need at my institution, so why do we need open-access journals?

Although the journals might seem free, in reality your institution has paid a substantial site license fee to provide online access to journals at any computer (even your home computer) that accesses them through your institutional server. There are also strict conditions associated with this access, which limit uses such as archiving the journal content locally, creating teaching materials, incorporating published information into databases, posting articles on institutional web sites, and so on. Site licenses are expensive and cumbersome and can involve complex negotiations, because publishers use many different ways to figure out how much to charge, and of course, many institutions simply cannot afford these licenses. Open access solves all of these problems.

Clearly, academics in the sciences are aware of what is at stake when information gets locked up behind access-restrictions. The question is, will the Humanities figure it out before it is too late? The Directory of Open Access Journals <http://www.doaj.org/> is an open-source journal directory based at the University of Lund, Sweden. The DOAJ includes journals in the sciences as well as Language and Literature, History, and other traditional academic subjects. The DOAJ materials are also licensed under a Creative Commons license, in this case an attribution — share-alike license. But such projects are small scale, unlike the MIT OpenCourseWare project.

MIT OpenCourseWare Project


<http://ocw.mit.edu>

Among the most extensive experiments with open access academics is the MIT OpenCourseWare (OCW) project. Begun as a pilot program in 2002, the project officially launched in September 2003. Recently, the OCW project adopted a version of the Creative Commons Attribution, Non-Commercial, and Share-Alike licenses. The specific combination MIT is available from Creative Commons as the MIT OpenCourseWare license. The OCW project will make nearly all MIT course materials available at no cost online by 2007.

MIT OCW is not a distance-learning initiative. Distance learning involves the active exchange of information between faculty and students, with the goal of obtaining some form of a credential. Increasingly, distance learning is also limited to those willing and able to pay for materials or course delivery. MIT OCW is not meant to replace degree-granting higher education or for-credit courses. Rather, the goal is to provide the content that supports an education.

That is, an individual can study the course materials, increase his or her knowledge, but would not earn an MIT degree by doing so. The implication is clear: all education is an active exchange of information, and the OCW project is simply one part of that exchange. The materials made available via OCW are available to any non-commercial use (and Universities are defined as non-commercial).

The inclusion of the Share-Alike provision is striking; this license requires that any project using OCW material must itself be made available under the same terms. In the digital community, this license, based on the Gnu/General Public License (GPL) is sometimes called a "viral license," since it spreads once it is in a community. Clearly, that is MIT's goal: any institution using OCW materials will, in effect, become part of the OCW project. If you use the material, you are expected to allow others to use your material. The MIT materials can be used in a Distance Learning environment, but then the entire Distance Learning "product," its teaching modules, scoring programs, access restricted databases, and the like would be subject to the OCW license (which means no one could charge for access). Publishers and courseware providers cannot lock up these resources.

It should be noted that the MIT project began before the Creative Commons licenses were available; MIT choose to put them under a CC license and in fact helped develop a new license (the MIT OpenCourseWare license).

Conclusion

We may be seeing the beginnings of a battle here. The OCW Project, The Creative Commons, Open Access Journals, all are attempts to free intellectual resources from those merely seeking a financial profit from them. Content creators are often not the ones profiting anyway — content providers and distributors are. Many of these providers and distributors pay nothing for the content; they serve as aggregators, and they do provide a service. But they do not produce knowledge. We do.

So where does this leave us? If we really value the sharing of information, if teaching and scholarship mean building on the ideas of the past, and sharing the connections we help create, if new ideas are to be put to best use, we must make our intentions clear — via such mechanisms as Creative Commons licenses — before content providers lock up our content and sell it back to us and our students. Copyright restricts how our work may be used; these alternatives allow us to limit how our work can be restricted.

For most academic projects, the Creative Commons Attribution and/or the Non-Commercial licenses seem to be most appropriate. The Share-Alike might not be acceptable to some because of its "viral" nature; such a strong requirement may in fact prevent others from using an author's work. In the future, I plan to put all of my online course material under an Attribution/Non-Commercial CC license, and I urge everyone in academia to consider doing the same. This is a small step; it does not directly address current copy-protection and access issues, but it will make these issues less likely to occur in the future. Once enough material is available under alternative copyrights, fair use may once again be possible.

 

Creative Commons License
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