Tag: copyright law

Charleston 2012: Ebooks – One Size Does Not Fit All

One size fits all. Welcome to the 80's by Stephan van Es
“One size fits all. Welcome to the 80’s” by Stephan van Es

Speaker: Anne McKee, GWLA

SERU was heavily involved in putting this session together. SERU hopes to put away with the madness of licensing and come up with mutually agreeable terms.

Most libraries purchase ebooks in order to make them available 24/7 to their users. While they haven’t grown to proportion sizes larger than print in library collections, they are heading there.

Researchers like ebooks because they don’t have to return them, and are more accessible than print books in the developing world. Students appreciate the ease of accessibility, particularly distance learnings, but given the choice they would take print over e every time. Libraries like them because there are easier/better ways of assessing usage and value to their users, but there are licensing and DRM headaches.

Speaker: Adam Chesler, Business Expert Press / Momentum Press

He has worked for large publishers, but now works for a small, new publisher.

What’s hard for a new publisher to break into the library market? Creating awareness, providing value — acquisition librarians are already overwhelmed with sales pitches via email. Authors may be wary of working with an unknown outlet when there are so many other options. They have to figure out ways to do this creatively.

Gaining budget shares in library materials budgets is challenging, where established publishers have long-standing space. Setting up trials for libraries and following up on them is challenging when one person is responsible for every business/science library in North America. “If you set up a trial, it would be much better to tell me to go to hell than ignore me.”

What’s easy? Nothing.

Well, being an e-only publisher means they don’t have responsibility for a print legacy that needs to be converted to online. That’s easy. They also have more freedom to experiment, particularly with pricing models. And SERU. That’s easy. They also don’t have their own platform, so they make the books available on established providers libraries are already comfortable using.

Speaker: Kimberly Steinle, Duke University Press

When they created the ebook side of the press, they modeled it after the ejournal side, with similar tiered pricing. They also work with the other ebook platforms and their pricing and licensing models.

While the ejournal collection sales are significant, they were surprised to find that ebook collections were not as popular as individual title sales.

They thought selling ebooks would be easy, since they already had existing relationships. MARC records, pricing, technology — not as easy as they thought. Squeezing the ebook model into the ejournal model doesn’t quite fit.

It’s easy to set up multiple sales models, but harder to get information about who the customers are and using that to make business decisions.

They’re a little worried that if they give up DRM it will impact print sales, but it’s obviously pretty unpopular and they do want the books to be used. They’re thinking about future formats — EPUB3, HTML5 — they need to keep up. They’re thinking about new ways to sell the content, and increasing the number of platforms and partners they work with.

Speaker: Bob Boissey, Springer

Serials come first at Springer (because they’re 80% of your materials budget). But, he’ll talk about ebooks today.

The STM publisher’s preference is to sell ebooks in packages directly to libraries, but there are other models based on library or patron selection that have some appeal. Eventually, market forces will probably mean they’ll have to do something with PDA.

In the post-PDA world, maybe we stop selecting and make sure that our systems are solid for allowing our users to find the best, most relevant content in an un-scoped collection. Might also mean giving up some of our concepts about what librarianship is.

The easy stuff: Libraries are the traditional purchasers of scholarly books, and publishers know how many print books we’ve purchased from them in the past. Many eresource issues were resolved with ejournals. SERU. The volume discount approach to selling ebook packages can work if the per unit cost is low, the percentage of portfolio used is high, and the spend is commensurate with print spend, but with more titles. Include textbooks and reference books in the package. Remove DRM, pair with liberal use and ILL permissions.

The not so easy, but not so hard stuff: Editors and authors have not had an easy time coming to terms with ebooks, much like print on demand. Discovery layer for ebooks is still the catalog, and it’s not down to the full text quite yet. Tablets are great for ebooks, and as they get more popular on campuses, ebooks get used more. Might have to give up the concept of book as a full thing and be okay with chapter-level reading. Most scholarly books outside of the humanities and social sciences are not read as a whole.

IL 2012: CULC and eBound

Holbeach e-book marker [old photo]
“Holbeach e-book marker [old photo]” by Paul Stainthorp
Speaker: Ken Roberts

Background: Canadian Urban Libraries Council (CULC) member libraries serve 70% of the Canadian population, and 98% of the circulation of materials. eBound is the Canadian eContent distribution arm for more than 100 Canadian publishers.

Publishers really needed a purchase model, not a licensing model, because their contracts with authors talked about sales. Libraries, on the other hand, preferred a license model. There was also some concern from the publishers that rights would be implemented in the way they were intended. And, they needed a third party partner to find a vendor who could handle the responsibility of housing and mediating the circulation of the ebooks, which is where eBound came in.

The purchase model seems a bit complex, and focuses primarily on the publisher’s back catalog at a very low rate per title ($10) sold in large blocks to the entire system. This addresses the publisher’s concern that the midlist authors aren’t getting exposure in libraries. And, if the circulation is low, the price drops after a period of time. The titles have a “worn out” rate of approximately 40 circulations. Some titles can be purchased at a higher rate for preservation purposes and would be DRM-free.

They expect to roll out the vendor side systems next spring, and once that is settled, then it would be rolled out to CULC members.

NASIG 2012: Copyright and New Technologies in the Library: Conflict, Risk and Reward

Speaker: Kevin Smith, Duke University

It used to be that libraries didn’t have to care about copyright because most of our practices were approved of by copyright law. However, what we do has changed (we are not in the age of the photocopier), but the law hasn’t progressed with it.

Getting sued is a new experience for libraries. Copyright law is developed through the court system, because the lawmakers can’t keep up with the changes in technology. This is a discovery process, because we find out more about how the law will be applied in these situations.

Three suits — Georgia State e-reserves, UCLA streamed digital video, and Hathi Trust & 5 partners for distributing digital scans and plans for orphaned works. In all three cases, the same defense is being used — fair use. In the Hathi Trust case, the author’s guild has asked the judge to not allow libraries to apply fair use to what they do because the copyright law covers specific things that libraries can do, even though it explicitly says it doesn’t negate fair use as well.

Whenever we talk about copyright, we are thinking about risk. Libraries and universities deal with risk all the time. Always evaluate the risk of allowing an activity against the risk of not doing it. Fair use is no different.

Without taking risks, we also abdicate rewards. What can we gain by embracing fair use? Take a look at the ARL Code of Best Practices in Fair Use for Academic & Research Libraries (which is applicable outside of the academic library context). The principles and limitations of fair use is more of a guide than a set of rules, and the best practices help understand practical applications of those guidelines.

From the audience: No library wants to be the one that wrecked fair use for everybody. Taking this risk is not the same as more localized risk-taking, as this could lead to a precedent-setting legal case.

These cases are not necessarily binding, they are a data point, and particularly so at the trial court level. However, the damages can be huge, and much more than many other legal risks we take. Luckily, in these cases, you are only liable for the actual damages, which are usually quite small.

The key question for fair use has been, “is the use transformative?” This is not what the law asks, but it came about because of an influential law review article by a judge who said this is the question he asked himself when evaluating copyright cases. The other consideration is whether the works are competitive in the market, but transformative trumps this.

When is a work derivative and when is it transformative? Derivative works are under the auspices of the copyright holder, but transformative works are considered fair use.

In the “Pretty Women” case, the judges said that multiple copies for educational purposes is a classic example of fair use. This is what the Georgia State judge cited in her ruling, even though she did not think that the e-reserves were transformative.

Best practices are not the same as negotiated guidelines. These are a broad consensus on how librarians can think about fair use in practice in an educational setting. Using the code of best practices is not a guaranteed that you will not get sued. It’s a template for thinking about particular activities.

In the Hathi Trust case, the National Federation for the Blind has asked to be added as a defendant because they see the services for their constituents being challenged if libraries cannot apply fair use to their activities that bring content to users in the format they need. In this case the benefit is great and the risk is small. Few will bring a lawsuit because the library has made copies so that the blind can use a text-to-speech program. Which lawsuit would you rather defend — for providing access or because you haven’t provided access?

Fair use can facilitate text-mining that is for research purposes, not commercial. For example, looking at how concepts are addressed/discussed across a large body of work and time. Fair use is more efficient in this kind of transformative activity.

What about incorporating previously published content in new content that will be deposited into an institutional repository? Fair use allows adaptation, particularly as technologies change. This is the heart of transformative use — quoting someone else’s work — and should be no different from using a graph or chart. However, you are using the entirety of the work, and should consider if the amount used is appropriate (not excessive) for the new work.

What about incorporating music into video projects? If the music or the video is a fundamental part of the argument and help tell the story, then it’s fair use. If you don’t need that particular song, or it’s just a pretty soundtrack, then go find something that is licensed for you to use (Creative Commons).

One area to be concerned with, though, is the fair use of distributing content for educational purposes. Course packs created by commercial entities is not fair use. Electronic course readings have not been judged in the same way because the people making the electronic copies were educators in a non-commercial setting. Markets matter — not having a market for these kinds of things helped in the GSU case.

The licensing market for streaming digital is more “hit or miss,” and education has a long precedent for using excerpts. It’s uncertain if an entirety of a work would be considered fair use or not.

Orphan works is a classic market failure, and has the best chance of being supported by fair use.

Solutions:

  • Stop giving up copyright in scholarly works.
  • Help universities develop new promotion & tenure policies.
  • Use Creative Commons licenses.
  • Publish in open access venues or retain rights and self-archive.

ER&L 2012: New ARL Best Practices in Fair Use

laptop lid comic relief + Dawn and Drew
photo by YayAdrian

Speaker: Brandon Butler (Peter Jaszi was absent)

The purpose of copyright is to promote the creation of culture. It is not to ensure that authors get a steady stream of income no matter what, or to pay them back for the hard work they do, or to show our respect for the value they add to society. It’s about getting the stuff into the culture, and giving the creators enough incentive to do it.

One way it does it is to give creators exclusive rights for a limited period of time. The limit encourages new makers to use and remix existing culture.

Fair use is the biggest balancing feature of copyright. It ensures that the rights provided to the creators don’t become oppressive to the users. Fair use is the legal, unauthorized use of copyrighted material… under some circumstances. And we’ve spent generations trying to figure out which circumstances apply.

Fair use is a space for creativity. It gives you the leeway to take the culture around you and incorporate it into your work. It allows you to quote other scholarship in your research. It allows you to incorporate art into new works.

There are four factors of fair use. Every judge should consider the reason for the use, the kind of work used, the amount used, and the effect on the market. But it doesn’t tell the judges how much to consider or which is more important. The good news is that judges love balancing features, and the Supreme Court has determined that fair use protects free speech. However, since copyright is automatically conferred as soon as the creation is fixed, the fair use judicial interpretations have shifted greatly since 1990 to be more in the balance of the users in certain circumstances.

Without fair use, copyright would be in conflict with the 1st Amendment.

Judges want to know if the use is transformative (i.e. for a new purpose, context, audience, insight) and if you used the right amount in that transformative process. For example, parody is making fun of the original work, not just reusing it. An appropriate amount can refer to both the quantity of the original in the transformative work, and also the audience who received your transformative work. For example, the many photographic memes that take pictures and alter them to fit a theme, like One Tiny Hand.

Judges care about you and what you think is fair. There is a pattern of judges deferring to the well-articulated norms of a practice community.

Best practices codes are a logical outgrowth of the things the communities have articulated as their values and the things they would consider to be legitimate transformative works. Documentary filmmakers, scholars, media literacy teachers, online video, dance collections, open course ware, poets… many groups are creating best practices for fair use.

The documentary filmmakers have had a code of best practice for a long time. They realized that without it, they were limiting themselves too much in what they could create. Once they codified their values, more broadcast sources were willing to take films and new kinds of films were being made. Insurers of errors and omissions insurance were able to accept fair use claims, and lawyers use the Statement to build their own best practices in the relevant areas.

Keep in mind, though, that these are best practices and not guidelines. Principles, not rules. Limitations, not bans. Reasoning, not rote. The numerical limits we once followed are not the law, and we need to keep them fresh to be relevant.

Licensing is a different thing all together. This means you may have less rights in some instances, and more rights in others, regardless of fair use.

For libraries, fair use enables our mission to serve knowledge past, present, and future. We have a duty to make copyrighted works real and accessible in the way people use things now. What will libraries be in the future? How will we stay relevant? We need to have some flexibility with the stuff we have in our collections.

Many librarians are discouraged. Insecurity and hesitation equal staff costs to hire someone to clear copyright questions. Fair use would help, but it’s underused. Risk aversion subsumes fair use analysis.

The ARL document took a lot of people from diverse institutions and many hours of discussion to create it, and it was reviewed by several legal experts. It’s not risk-free, since it would need to stand up in court first (and there are always lawsuit-happy people), but it seems okay based on past judgement.

They hope it will put legal risks into perspective, and will give librarians a tool to go to general counsels and administrations and let them know things are changing. It considered the views of librarians and their values, and they also hope that people will speak out publicly that they support the Code.

Fair use applies in these common situtations:

  • course reserves — digital access to teaching materials for students and faculty, although it should be limited to access by only the appropriate audience
  • both physical and virtual exhibits — if it highlights a theme or commonality, you’re doing something new to help people understand what’s in your library
  • digitizing to preserve at-risk items — you’re not a publisher or scam artist, you’re a librarian making sure the things are accessible over time (like VHS tapes)
  • digitizing special collections and archives — you’re keeping it alive
  • access to research and teaching materials for disabled users — i.e. Daisy
  • institutional repositories
  • creation of search indexes
  • making topically-based collections of web-based materials

Practice makes practice. It won’t work if you don’t use it.

CIL 2011: EBook Publishing – Practices & Challenges

Speaker: Ken Breen (EBSCO)

In 1997, ebooks were on CD-ROM and came with large paper books to explain how to use them, along with the same concerns about platforms we have today.

Current sales models involve purchase by individual libraries or consortia, patron-driven acquisition models, and subscriptions. Most of this presentation is a sales pitch for EBSCO and nothing you don’t already know.

Speaker: Leslie Lees (ebrary)

Ebrary was founded a year after NetLibrary and was acquired by ProQuest last year. They have similar models, with one slight difference: short term loans, which will be available later this spring.

With no longer a need to acquire books because they may be hard to get later, do we need to be building collections, or can we move to an on-demand model?

He thinks that platforms will move towards focusing more on access needs than on reselling content.

Speaker: Bob Nardini (Coutts)

They are working with a variety of incoming files and outputting them in any format needed by the distributors they work with, both ebook and print on demand.

A recent study found that academic libraries have significant number of overlap with their ebook and print collections.

They are working on approval plans for print and ebooks. The timing of the releases of each format can complicate things, and he thinks their model mediates that better. They are also working on interlibrary loan of ebooks and local POD.

Because they work primarily with academic libraries, they are interested in models for archiving ebooks. They are also looking into download models.

Speaker: Mike (OverDrive)

He sees the company as an advocate for libraries. Promises that there will be more DRM-free books and options for self-published authors. He recommends their resource for sharing best practices among librarians.

Questions:

What is going on with DRM and ebooks? What mechanism does your products use?

Adobe Digital Editions is the main mechanism for OverDrive. Policies are set by the publishers, so all they can do is advocate for libraries. Ebrary and NetLibrary have proprietary software to manage DRM. Publishers are willing to give DRM-free access, but not consistently, and not for their “best” content.

It is hard to get content onto devices. Can you agree on a single standard content format?

No response, except to ask if they can set prices, too.

Adobe became the de facto solutions, but it doesn’t work with all devices. Should we be looking for a better solution?

That’s why some of them are working on their own platforms and formats. ePub has helped the growth of ebook publishing, and may be the direction.

Public libraries need full support for these platforms – can you do that?

They try the best they can. OverDrive offers secondary support. They are working on front-line tech support and hope to offer it soon.

Do publishers work with all platforms or are there exclusive arrangements?

It varies.

Do you offer more than 10 pages at a time for downloads of purchased titles?

Ebrary tries to do it at the chapter level, and the same is probably true of the rest. EBSCO is asking for the right to print up to 60 pages at a time.

When will we be able to loan ebooks?

Coutts is working on ILL.

social & scholarly communications, mixing it up

Scientific publisher Springer has been doing several things lately that make me sit up and pay attention. Providing DRM-free PDF files of their ebooks is one, and now I see they are providing rather useful bits of scholarly information in a rather social media format.

Springer Realtime gives currently trending topics and downloads for content they are serving out to subscribers around the world. The only thing that’s missing is a way to embed these nifty widgets elsewhere, like on subject guide pages.

NASIG 2010: Let the Patron Drive: Purchase on Demand of E-books

Presenters: Jonathan Nabe, Southern Illinois University-Carbondale and Andrea Imre, Southern Illinois University-Carbondale

As resources have dwindled over the years, libraries want to make sure every dollar spent is going to things patrons will use. Patron-driven acquisition (PDA) means you’re only buying things that your users want.

With the Coutts MyiLibrary, they have access to over 230,000 titles from more than 100 publishers, but they’ve set up some limitations and parameters (LC class, publication year, price, readership level) to determine which titles will be made available to users for the PDA program. You can select additional title after the initial setup, so the list is constantly being revised and enhanced. And, they were able to upload their holdings to eliminate duplications.

[There are, of course, license issues that you should consider for your local use, as with any electronic resource. eBooks come with different sorts of use concerns than journals, but by now most of us are familiar with them. However, those of us in the session are blessed with a brief overview of these concerns. I recommend doing a literature study if this interests you.]

They opted for a deposit account to cover the purchases, and when a title is purchased, they add a purchase order to the bibliographic record already in the catalog. (Records for available titles in the program are added to the catalog to begin with, and titles are purchased after they have been accessed three times.)

[At this point, my attention waned even further. More interested in hearing about how it’s working for them than about the processes they use to set up and manage it, as I’m familiar with how that’s supposed to work.]

They’ve spent over $54,000 since November 2008 and purchased 470 titles (approx $115/title on average). On average, 95 pages are viewed per purchased title, which is a stat you can’t get from print. Half of the titles have been used after the initial purchase, and over 1,000 titles were accessed once or twice (prior to purchase and not enough to initiate purchase).

Social sciences and engineering/technology are the high users, with music and geography at the low end. Statistically, other librarians have pushed back against PDA more than users, and in their case, the humanities librarian decided this wasn’t a good process and withdrew those titles from the program.

During the same time period, they purchased almost 17,000 print titles, and due to outside factors that delayed purchases 77% of those titles have never circulated. Only 1% circulated more than four times. [Hard to compare the two, since ebooks may be viewed several times by one person as they refer back to it, when a print book only has the checkout stat and no way to count the number of times it is “viewed” in the same way.]

Some issues to consider:

  • DRM (digital rights management) can cause problems with using the books for classroom/course reserves. DRM also often prevents users from downloading the books to preferred portable, desktop, or other ebook readers. There are also problems with incompatible browsers or operating systems.
  • Discovery options also provide challenges. Some publishers are better than other at making their content discoverable through search tools.
  • ILL is non-existent for ebooks. We’ve solved this for ejournals, but ebooks are still a stumbling block for traditional borrowing and lending.
  • There are other ebook purchasing options, and the “big deal” may actually be more cost-effective. They provide the wide access options, but at a lower per-book cost.
  • Archival copies may not be provided, and if it is, there are issues with preservation and access that shift long-term storage from free to an undetermined cost.

Learning 2008: Copywrong – Web 2.0 and Collaborative Multimedia Resources

Presenters: Paul Porterfield, Allison Czapracki, & Linda Fairtile

Fair use is not a right, it is a legal defense. That is something to keep in mind when using copyrighted materials in the classroom. Make sure you understand the circumstances and restrictions that allow for fair use before you do anything with copyrighted material.

PD Info is a website that provides information about music that is in the public domain, but they note that while some printed music is in the public domain, there is virtually no recorded music that is not covered by copyright. (Creative Commons licensed music is still covered by copyright, but the owner has assigned certain aspects of those rights to others.)

The UR Music Library maintains a server that provides streaming audio of recordings for educational use for specific courses. There are also resources such as Alexander Street Press’ American Song collection that provides streaming audio, as well as additional information about the recordings.

Public domain resources can be found all over the web. LibriVox is a site that provides free audio recordings of public domain works. Project Gutenberg provides ebook versions of public domain works.

Creative Commons is a way to allow others to use your work in whatever way you allow. This is a great tool for collaboration and new creations derived from old, just like the old days before copyright. Students need to know that they can use many CC licensed works in their assignments and presentations, and as long as they follow the license terms, they don’t need to worry about whether or not it falls under fair use. Allison has several sources for locating CC licensed or copyright-free media.

do it! do it!

Weird Al doesn’t want you to download this song — or does he?

If Michael Jackson is the King of Pop, then Weird Al Yankovic must be the Court Jester. For the past twenty-five years, Weird Al has been simultaneously entertaining and annoying millions of music fans around the world. He’s set to do it again with a new album later this month (Straight Outta Lynnwood).

A clever — if demented — bit of marketing has made the first single from the album, “Don’t Download This Song,” a free download. Mind boggling, isn’t it?

The song is an original ballad of the raised lighter variety, including a chorus that swells with a choir of backing vocals. Don’t be too surprised if it gives you flashbacks to “We Are the World” and other songs of that sort. Even with the sentimental touch, Weird Al is able to convey a sense of poking fun at the genre. It’s a sincere cupcake iced with irony.

The first verse sets up the extreme RIAA fascist perspective:

Once in a while maybe you will feel the urge
To break international copyright law
By downloading MP3s from file sharing sites
Like Morpheus or Grokster or Limeware or Kazaa
But deep in your heart you know the guilt would drive you mad
And the shame would leave a permanent scar
‘Cause you start out stealing songs, then you’re robbing liquor stores
And selling crack and running over school kids with your car

The chorus changes every time, and the first one is:

So don’t download this song
The record store’s where you belong
Go and buy the CD like you know that you should
Oh don’t download this song

Essentially, they all end up with the same message – illegal downloads are bad and you really should know better.

Some music fans write off Weird Al as a novelty act. This song is yet another one that demonstrates he can write songs with humor and also have something worthwhile to say. “Don’t Download This Song” points out all the evil bad things with illegal downloads, but this legally downloadable song will likely result in numerous sales of the album. Rather than getting all Lars Ulrich about it, Weird Al is going with the flow while still making music worth buying.

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