Copyright Report, #10

This news update is almost all about educational copying, though that’s entirely coincidental!

Copyright facts & copyright opinions

Some thoughts after recent conversations related to, and also some interactions with students in the online class I’ve been teaching. I may be wrong about some of these statements, and welcome suggestions about where I am wrong in the comments, or on Twitter.

The existence of a copyright is a legal fact. Sometimes it is a knowable fact, and sometimes it is an unknowable one.

  • example: no copyright exists in a work that was published in the United State prior to 1923; knowable.
  • example: no copyright exists in a work that has never been published, but whose creator died more than 70 years ago; knowability depends on whether you know who the creator was, and whether you can figure out when they died.
  • example: no copyright exists in a work that was published from 1922 through 1963 in which the copyright was registered and not renewed; knowability depends on whether you can get your hands on the -right- set of renewal records for the right year.

Who the owner of a copyright is, is usually a legal fact. Sometimes it is a knowable fact, and sometimes it is an unknowable one. Every once in a while, it’s a matter of opinion.

  • example: a work produced on the job usually belongs to the employing organization. This is usually knowable, although fairly often, one or the other (or both) is unaware of the fact.
  • example: sometimes, it may be factually unclear whether a particular person is an employee.
  • example: sometimes, it may be factually unclear whether a copyright was transferred to someone else, or how a chain of inheritance ran.

Whether a particular use is permitted under a specific copyright exception in §§108-122 is sometimes a fact, and sometimes a matter of opinion.

  • example: a teacher holding up a book and reading it aloud to a classroom of first-graders in a public school is 100% allowed to do that under §110(1)
  • example: opinions may vary about whether a teacher reading aloud a book in a cow barn is in a “classroom or similar place devoted to instruction”

Whether a particular use is a fair use is almost always a matter of opinion, until such time as a court rules on a particular case.

  • example: opinions vary on whether an instructor using an image in a slide deck as part of classroom instruction at a public school is a fair use or not.

Hmm. More to think about here.

Copyright Report, #9

General copyright news/info

  • The House Judiciary Committee has posted the comments it got in response to its policy proposal to “modernize the Copyright Office which was posted late last year. The letter I and quite a few of my higher-ed libraries copyright colleagues sent was not included in the public responses, but there are interesting comments from the Library Copyright Alliance and a number of other public interest groups.
    In other news, the information and interaction design of that webpage is really not good.
  • The Copyright Office has an open study on Section 512 (the notice-and-takedown provisions) of the Digital Millennium Copyright Act, and recently extended deadlines for comment submission. Written responses to the questions outlined in the Second Notice are now due no later than 11:59 p.m. Eastern Time on February 21, 2017. Empirical research studies are due no later than 11:59 p.m. Eastern Time on March 22, 2017.
  • The Copyright Office also recently (1/23/2017) opened a study on the Moral Rights of Attribution and Integrity. They have posted a Notice of Inquiry(PDF), and comments in response are due no later than 11:59 p.m. Eastern time on March 9, 2017.
  • A bill has been introduced (2/6/2017) in the U.S. House of Representatives to make the Copyright Office an independent Legislative branch agency. Details are thin at the moment.

Other related topics

Copyright Report, #8

A bit rushed, but lots of content here!

Libraries are not anti-copyright. No, really.

I am a co-signatory on a letter sent today to the heads of the House and Senate Judiciary committees, who have expressed interest in updating/tinkering with current US copyright law. Among other suggestions, they are interested in removing the Copyright Office from the Library of Congress. This is a valid policy position, but many advocates for this position uncharitably characterize librarians as having no respect for creators (sometimes, bafflingly, because we are all just Google shills(?!?!???)). Even many of the more charitable advocates frame the discussion by explaining that copyright and libraries are inherently in tension, especially because libraries are about providing free public access to information and cultural materials.

That’s weird.

I thought -copyright- was about increasing the publicly-accessible stock of information and cultural materials.

Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

United States Constitution, Article I, Section 8

Even if you don’t agree with my reading of the Constitution’s intellectual property clause, and take the purpose of copyright as only about securing benefits to authors and creators, there are SO MANY things libraries do that benefit authors and creators. Here’s a few:

  1. We buy content.
    (Holy crap, do we buy content. We get portrayed as being all about copying without permission, when even small public libraries spend thousands of dollars each year, buying content.)
  2. We connect content with audiences.

    [D]on’t ever apologise to an author for buying something in paperback, or taking it out from a library (that’s what they’re there for. Use your library). Don’t apologise to this author for buying books second hand, or getting them from bookcrossing or borrowing a friend’s copy. What’s important to me is that people read the books and enjoy them, and that, at some point in there, the book was bought by someone. And that people who like things, tell other people. The most important thing is that people read…”
    ― Neil Gaiman

  3. We help creators with logistics.
    I cannot count the number of people to whom I have explained a) that they already own copyrights in their works and b) that registration may be beneficial anyway (and how to register.)
    I also consult a lot with people who want to both share stuff online -and- control its use, and so I spend a lot of time both helping people figure out ways to -maybe- do that successfully, but also advising them that that is, practically speaking, almost impossible, so it may be to their benefit to sometimes not share.
  4. We help people who are making new stuff out of old stuff (as ALMOST EVERYONE making new stuff is)
    And by “help”, I mean: provide access to existing materials that are the building blocks of scholarly and artistic creativity, and help new creators understand how they can legally use existing stuff.
    I once had someone on a committee I was on tell me, to my face, that we do not tell users about getting permission and legal open content, or that what they may be able to do as students is not the same as what they may be able to do in business, and I was just, like, “um… here’s some links from my workshops… and from our media services librarian teaching students how to legally make videos… and here’s our Copyright Permissions Service where UMN-affiliates can get help with permissions for zero fee paid to the Libraries even though we pay the salaries of the AWESOME staff who run the service…”

Please do read the letter (written with more eloquence than I can muster) where these issues are addressed in more detail.

Copyright Report, #7

Picking up where I left off several months ago, some recent news on the copyright and academic-IP fronts…

General copyright news/info

Extremely off-topic: -chilly- weather bike gear

We’ve recently hit true fall weather in MN, with morning temps consistently in the mid-40s to mid-50s °F (that’s like 7-13 °C for normal parts of the world.) This is the temperature range where biking can start to be uncomfortably cold for many riders, especially in everyday clothes. BUT it’s also a part of the year when biking can be really gorgeous and -just a teeny bit- of useful gear may make it totally comfortable in ways that even largish amounts of slightly ridiculous gear don’t entirely achieve in the dead of winter.

Things to put on your body

Gloves. I like full-finger wind-blocking bike gloves (I have these, and especially like the reflective patches for signaling turns, but YMMV.)

Full hand in lightweight black glove with reflective gray stripe. Hand is resting on bike handlebars, which are leaning against a windowsill in the background.
A colleague recently told me that she likes lightweight knit gloves at this time of year, for the breathability. I find the breathability of the bike gloves pretty good, and appreciate the grip on the palms. (Lest you think I’m too big a fan of single-purpose clothing – my retired pair of full-finger gloves (got a hole in one finger) is my go-to for moving furniture in my house. Due to the grippiness of the palms, without sweaty insulation.)

Head-covering – note, probably NOT a hat. This is the time of year my ears can start to get cold while riding, but once I’m moving, it’s definitely too warm for a hat. I use “Buff” headbands to cover my ears, and the “half-Buff” scarfy things for a lightweight most-of-the-head covering if it’s particularly chilly. A different colleague down the hall who rides a bit more than twice as far as I do also uses these. (We both use them in warm and cool weather; they’re useful as sweatbands, too. And in a pinch, as a neck covering if I forget to sunscreen.)

Light blue square of fabric draped over barely visible narrow black bike seat. The fabric has white printing with an outline of the state of Minnesota, and the state seal in the center.
It doesn’t -have- to be a cool reference to your awesome state, but it probably helps.

Also wool socks & shirts, maybe? I wear mine from, like, mid-September through to mid-May or early June. This time of year is great for a wool long-sleeve shirt with a t-shirt over it in the morning, and then if things warm up, just the t-shirt on the way home! My longest-lasting wool socks are from Fox River. My most comfy wool shirts are from Smartwool, but they’re -spendy- (like, I only get those on -big- sale). I have several Terramar wool shirts that are much more affordable & holding up well, but theirs all seem to be blends now. I’ve also got one from LLBean that’s holding up well and was a bit more affordable.

Things to put on your bike

LIIIIIIIIGHTS. Always and forever lights. At the -very least, FFS, a headlight and a taillight-.

In summer, maybe you don’t end up riding in the dark that often (especially this far north.) But this time of year, it is getting dark a lot earlier!!! Also, it is rainy and/or grey-skied more often!! So YOU ARE HARDER TO SEE, regardless of how well -you- can see.

I was driving last night & saw a guy on a tallish recumbent around dusk, and he was just SO invisible. Didn’t see him until I was close enough that it’d’ve been dangerous if I’d been turning towards him.

Also reflectors. And maybe, since getting wet is way more of a problem in cold weather than in warm, a fender? Or the extremely high-tech solution I employ to reduce spray from my back wheel…

Bike rack viewed from the rear of the bike; it is sporting a decrepit cardboard cracker box held in place by a loose bungee net.
I don’t even think those were my crackers, I think I just grabbed this from office recycling.
Now I’m gonna go ride home, in the dark, in my gloves & scarf & WITH MY SEVERAL LIGHTS.

Owning your own work, and letting others share it!

Saw this tweet yesterday, and was intrigued.

To unpack from Twitter’s 140-character limit, author Martin Paul Eve is saying that the publisher Taylor & Francis (“T&F”) has requested that one of his articles, originally published in the Journal of Victorian Studies (“@JofVictCulture”), be removed from some online site. In particular, “takedown notice” implies that Taylor & Francis claimed that they owned the copyright in the article, and based their request for removal on that supposed copyright ownership. But, Eve says, the contract he signed with Taylor & Francis was non-exclusive (i.e., he didn’t give T&F exclusive ownership of any rights), and he retained copyright ownership! So, Taylor & Francis may well not be the owners of the copyright in this work!

In my experience, sometimes when authors request to not transfer their copyright to a publisher, the publisher provides an “alternative” form contract that grants an -exclusive- license to a wide variety of rights. The end result of signing such a contract is almost the same as transferring the copyright, because the publisher is the only one authorized to exercise those rights. I have specifically seen such a contract from Taylor & Francis in the past (though I do not know if this is a current practice.)

But Eve is very well-informed about these issues, so I didn’t think he’d be tripped up by even that subtle a move. I followed up with him for more detail (and to make sure he’d be okay with me writing a blog post about the incident), and indeed he -did- receive the “exclusive rights” alternative contract from T&F, but before signing & returning, he edited it to remove the word “exclusive”!

I do not claim great expertise in non-U.S. law (and both Eve & the journal are located in the UK), but my overall impression of the contract as signed is that it could be -clearer- about control of specific rights, but it is 100% clear that Taylor & Francis do not own the copyright, and not at all clear that T&F has any exclusive rights to the article.

Unfortunately, the host of the specific copy of the article had already taken down the article by the time Eve received notice of the takedown – whether they will put it back up, or not, is yet to be seen. Eve does have some other open copies elsewhere online, and the T&F original is still accessible, so his work is still readable. But this could have come out very differently.

Important takeaways for authors

1. You can 100% negotiate your publication contracts.

A lot of authors feel uncomfortable asking publishers to change publication contracts. But many publishers are quite willing to be flexible – and many publishers have policies that are more friendly to authors even without negotiation! Authors can look up publishers at SHERPA/RoMEO (and click through to the publisher’s actual policies) to select outlets that accommodate their preferences in baseline practices. There are also times when an author would be actively interested in publishing with an outlet that does not have such friendly baseline policies. In that case, it rarely hurts to ask for changes.

In my experience, authors sometimes worry that an article will be un-accepted if they ask for changes to a publication agreement. I’ve never heard of that happening, though I have heard of publishers who absolutely will not accommodate author requests on this point. (In that case, the author faces the choice of agreeing to the publisher’s terms, or not having their article published. Even then, the publisher is usually happy to accept the article when the author does decide to agree to their terms.) What authors may not always realize is that – especially when it has already been reviewed and found acceptable – the publisher needs your article! So many of them are willing to negotiate.


Publishers have few incentives to keep careful track of which authors they signed non-standard contracts with. If you believe you retained rights in a work, but have no record of the specific terms of your agreement, the publisher (and other parties) will likely assume that you agreed to their standard agreement. In Eve’s case, depending on the attitude of site hosting the paper, he might be able to invalidate T&F’s takedown request. But that is entirely dependent on the fact that he has a record of what he -actually- submitted to T&F.

Important takeaway for hosts of author-deposited copies of academic papers

If you want to claim the safe harbors of the DMCA, you don’t have a lot of wiggle room in how you respond to a takedown request. Under U.S. law, someone who submits a DMCA takedown request must swear that they have a good faith belief in their claim of copyright ownership/infringement – but the host who wants to stay within DMCA policy will probably need to take that at face value.

However, for hosts that are not relying on the DMCA to begin with (i.e., most library/institutional repository hosts, and many disciplinary repository hosts), there is no need to follow the DMCA’s steps in response to a takedown request. (Also, not all “takedown requests” are DMCA takedown requests, but that’s an are for another blog post or three.) Since we know quite well that many academic authors, like Eve, are savvy enough to retain their rights, it is perfectly reasonable to respond to a takedown request from an academic publisher with a request that they provide evidence of their rights ownership. I know some academically-hosted repositories have done so in the past.

Important takeaway for academics in general

Academic publishers do have incentives to keep their originals accessible. But third party article hosting services that are not themselves either publishers or directly run by academic institutions or organizations have little incentive to fight to preserve access to any individual article on their site. When Elsevier sent takedown requests to, took down the articles – because that is the rational response of a for-profit company whose business plans are primarily oriented to monetizing the social graphs of academics. (Note that -many- of those takedown were about articles where Elsevier absolutely -did- own the copyrights.)

To preserve open versions of content originally published in closed venues, and to support authors who do the work of retaining their rights, there -must- continue to be copies hosted on servers -run by academics-; either institutions, or disciplinary organizations. These are the organizational actors that have serious incentives to do active advocacy in the service of long-term preservation and access.

Quality Control

This is not a post about copyright. It is, very indirectly, a post about how I talk about copyright. But the real point here is about how word choice (and to a lesser extent, choices to invoke some more general concepts) in public speaking can affect individuals in the audience. It is about how not using some words (even ones you may like using in other contexts) can affect how the overall message is received by the audience. Most importantly, it is about how omitting or taking care with some words and concepts can be a baseline act of respect for the individuals that make up an audience.

I do a lot of public speaking, and while I usually have an outline for the talk, most of the words that come out of my mouth are not scripted. Some large amount of what I say is not entirely under my conscious control. However, like most (I would like to say all, but this is sadly super not-true) public speakers, I avoid some words because they are generally considered socially unacceptable. This includes curse words (YMMV on whether cursing is socially acceptable, but few people would agree it falls within “polite” speech in most public contexts), racist and sexist slurs, and so on. This also doesn’t involve much conscious effort, because I am not a jerk .

However, over the years, I’ve started to make some conscious efforts in some other words I don’t say.

I’ll admit, the reason I first started editing my public speech was selfish. “Guys” is -very widely- used as a gender-neutral term for a multi-gender group. (I do still use it this way, usually accidentally, but I’ve managed to mostly remove it from my public speech.) But even though it’s -used- that way, the use of a masculine term as a universal descriptor is fundamentally pretty sexist. Unless you would equally casually use “gals” with a mixed-gender group, then you honestly do mean something a little bit gendered when you use “guys” the same way. That’s not what most people -mean-, that’s not what every woman or every non-binary or trans person experiences when they hear it, but it rubbed me the wrong way, and it’s use created some discomfort for a young person I was mentoring in a specific environment.

Over time, universal “guys” has also come to bother me for some other reasons. I’ve realized that my own gender identity is kind of tiny. (No, I don’t mean that I identify as the gender “tiny”; gender is just really peripheral to my self-image.) Having a gendered term used in an environment when gender is otherwise irrelevant has always thrown me off a little. Nothing major, no major personal distress. But having that experience of being minorly thrown out of the flow of a conversation/lecture/article/etc, helped me to understand more about how some words might be more disorienting, or have a much stronger negative impact, for others. So over time, my avoidance of the use of “guys” with multi-gender groups has evolved to generally avoiding gendered terms -at all- with groups of people, unless it’s the actual topic of discussion.

More recently, I’ve also started avoiding words that I was using that others have told me were problematic for people with disabilities (also called “ableist” language). “Lame” and “dumb” were easy to drop. “Crazy/insane”, “stupid” and “blind/deaf” (in the metaphorical sense) have been harder.

Most of these words are not commonly recognized as slurs, and pretty much all of them are accepted in everyday “polite” speech in the U.S.  I am not suggesting that they are inherently “bad” words. But I do think it would be a good idea if others tried to avoid them, too. Especially in professional spaces, and especially especially in learning spaces. Although many colleagues have totally been on board with my efforts to edit my public vocabulary, and have helped me to develop awareness of problematic terms, some others have been uncomfortable with the suggestion that this is something we all should consider.

One form that discomfort takes is to point out that these words don’t -actually mean- anything bad; there’s a colloquial usage that “everyone” understands. Particularly with “guys” it’s is 100% true that there’s a colloquial usage of the term that is intended as gender-neutral.

But in trying to treat other humans with respect, intent alone doesn’t get you very far. Avoiding ableist or needlessly gendered words is not about what -I- intend when I use them (and I do still slip up and use several of them sometimes. I’m trying.)  All of them are words that can be a distraction, and potentially upsetting or painful, for members of the audience. I confess there’s at least one word I mentioned that I still grapple with, feeling it has pretty valid usage in some situations; but if people in my audience experience it in a negative way, why should I -not- try to stop using it? There are tons of alternatives, the problematic terms are not necessary to convey my message, and removing them does no damage to anyone -else- in the audience.

Another pushback I’ve seen against the idea of limiting problematic vocabulary is that it will run to the extreme: that there will just be an ever-increasing list of things we can’t say or talk about for fear of bringing down the “PC Police”. I am a pretty big first-amendment fan, so I laugh a lot at people who use the phrase “PC Police” seriously. But on the other hand, um, maybe there will be an ever-increasing list? Is it -bad- that most of our society no longer considers it socially acceptable to tell racist jokes?

It’s true, once I started thinking about how my choices of words and metaphors might affect individual members of my audience, more than just my word choices changed. I am much less casual than I used to be about bringing up potentially fraught topics in general. One I still do invoke, but much more carefully, is pornography: it is often relevant to copyright topics, but is itself a really fraught topic, on a -number- of axes. I am more careful when bringing it up when it’s relevant and necessary, because I have a clearer understanding that some of my audience may find the mere mention a barrier to their own learning. (As they may here. Sorry if that’s you.)

I have also sometimes seen people push back against “PCism” by suggesting that replacing these words will sound ridiculous, or awkward. That it would make the speaker look silly. But I’m pretty sure that’s simply not true, if the speaker practices just a little bit.

One reason for that certainty is that I’ve seen fairly widespread scoffing that “folks” or “y’all” can be a reasonable replacements for “guys” in casual speech. People seem sure those will sound artificial. But I’ve been using those in workshops for years, and I have never received a single piece of audience feedback on it. I have -asked- people who’ve seen me speak multiple times if they’ve noticed I use those words, and most have not.

I’m -much- less smooth at substituting things in for “crazy” or “insane” – it -keeps- trying to pop up in my speech. I’ve slid towards things like “wacky” or “nuts”, but then, those have a lot of the same negative weight, and can be a similarly negative experience for other people. I try for “irrational”, “wild”, “disconnected”, “ridiculous”, “silly” or other more neutral words (that also often have the benefit of being closer to what I actually -mean-.) And yet, even though I sometimes still -physically pause- to find a better word than “nuts”, I don’t think any of my audience members have noticed.

I -do not want a cookie- or praise for these efforts. I’m writing about them in the hopes of encouraging other public speakers (or writers or trainers or etc) to consider doing some of the same. Or, for people who have already considered and chosen not to avoid words like these, to offer some additional perspective on the consequences of such a choice. I’m also writing to encourage people to let me know when I screw up: it was not comfortable to learn I was using words that bothered people, but in the long run, that discomfort has produced benefits for me and more importantly, for others. Please, discomfort me.

If you’re someone these problematic words don’t bother, great. When someone removes them from their public speech, you probably don’t even notice. But for the people who -are- bothered by any of these words, I hope their omission from public speech is -also- fairly invisible for you. Because you not having to think about this is -exactly why people should be omitting them in the first place-.

(With thanks for the thoughtful suggestions of two reviewers, Kathleen Lu and Jessica Schomberg; and no blame to them for anything I said that’s obnoxious.)

Copyright Report, Vol. 6 – lots of music action

General copyright news/info

Libraries/Higher Ed/Academic news/info

Techlaw news/info

Just Awesome