'Fair' Fight over Copyright in Canada

Content owners and content users have been battling over whose rights take precedence almost since the first stone tablet was carved. The latest tussle, according to Publishers Weekly, is in Canada, where publishers are growing concerned about the amount of content used by educational institutions without permission or payment.

In 2012, Canadian legislators updated the copyright law, extending the uses allowed under “fair dealing” (known as fair use in the U.S.) to include education as well as satire and parody. Already permitted were news reporting, research, personal study, and criticism. Although the law in Canada, as in the U.S., doesn’t provide a specific limit, in general it has been acknowledged that “fair” means permitted users can copy no more than 10% of a work.

Some schools may be stretching that 10% interpretation. In comments to Publishers Weekly, the executive director of the nonprofit Access Copyright licensing organization said educational institutions seem to “believe it is fair to copy a chapter, put it on a course management website, and share it with a class of 10 students or a class of 150 students…. It would be fair to take chapters from multiple publications, journal articles, and 10% of a book, compile it all into a coursepack, and use that as the readings for a given class, without paying any of the rightsholders.”

Publishers have seen a drop in textbook sales since the copyright law was amended and Access Copyright reported fewer universities are renewing their collective licensing agreements. Other educational organizations claimed those declines are due to other factors.

The revised law is up for legislative review in 2017 and a court case involving fair-dealing guidelines is set to be heard in May 2016. 

A Push for Legalizing Book Piracy

A Pakistani bookseller was recently sentenced to seven years in prison and a hefty fine for printing and selling unauthorized copies of textbooks copyrighted by Oxford University Press (OUP). That sort of piracy is rampant in many parts of Asia, and publishers are trying to crack down on it.

In India, OUP has filed a lawsuit, together with Cambridge University Press and Taylor & Francis, against a copyshop affiliated with Delhi University for unlawfully reproducing and selling their books. This suit, however, has spurred a movement to legalize copying of materials for academic purposes.

The Indian government is considering petitioning the World Intellectual Property Organisation (WIPO) to revise its copyright rules to allow academic and research institutions to make copies of course materials without getting permission from or paying the copyright-holders, usually the publishers.

The government’s position is that students and educators should have free and open access to materials used for teaching and learning. Other countries, such as Chile, have made the same argument.

If WIPO agrees, the change could cost publishers a ton of revenue and raises the question: Who then ought to pay for development of course materials?

New SIIA Report Focuses on OER

With more and more educators using open educational resources (OER), the Software & Information Industry Association (SIIA) created its Guide on the Use of Open Educational Resources in K-12 and Postsecondary Education. The 34-page manual provides information on various copyright and licensing issues involved in using open educational resources.

“SIIA expects that educational needs will be addressed moving forward by a mix of instructional materials, including OERs,” the authors of the guide wrote. “SIIA and this guide are focused on helping public officials, instructors, and content providers better understand the various OER models, as well as the total costs to consider in determining the appropriate strategy for developing and implementing a particular educational resource.”

The report details some of the pitfalls of OER, including the resources necessary to scale their use and concerns over cost shifting instead of cost savings. At the same time, it presents some of the highlights of OER, such as their long-term value and having teachers more involved in developing curriculum and resources.

“It appears that OER and the related educational, business, and intellectual property license models are here to stay,” the authors wrote. “In the end, the greatest value of OER may not be in cost savings, but in changing the relationship of educators and students to their learning resources by empowering them to help author, customize, and share them. Either way, all stakeholders will need to carefully consider and appropriately adjust to OER as an important educational element.” 

Ruling Handed Down in GSU Copyright Case

A ruling in the copyright infringement suit against Georgia State University was announced May 11, with the judge rejecting 95% of the specific readings challenged by the publishers that took GSU to court.

The judge also outlined the ways institutions can continue to cite the “fair use” doctrine when making electronic copies of material for use in classes and rejected publishers’ contentions about how to regulate e-reserves. However, she also imposed strict limits about how much of a book may be covered by fair use and that a publisher may have claims against university e-reserves if that publisher offers reasonably priced systems for getting permission to use book excerpts online.

Examinations of the decision started almost immediately. Kevin Smith, the scholarly communications officer at Duke University, blogged about the decision mere hours after it was released. Posts also appeared on the Inside Higher Education web site from editor Scott Jaschick and Barbara Fister, a librarian at Gustavus Adolphus College, before the sun was up on Mother’s Day morning. The Chronicle of Higher Education also chimed in.

Appeals appear to be certain, but in the meantime, neither side goes away completely happy with the decision.

Fair Use Copyright Lawsuit

Faulkner Press v. Class Notes  d/b/a/ “Einstein Notes”

There is an interesting lawsuit concerning copyright infringement pending in a Florida district court concerning the sharing of course information and may answer the question of whether sharing of course materials actually qualifies as fair use.

Professor Michael Moulton, a faculty member at University of Florida published an e-book version of his lectures notes and slides through Faulkner publishing.  He had also registered this information with the copyright office.  The lawsuit was filed after the lecture outlines and film study questions prepared by Professor Moulton were copied and packeted for resale by a local copy shop. The professor had transferred his copyrights in the materials to a publisher, who filed the infringement action. This past June, the district court ruled on the cross motions for summary judgment.  Recognizing that the text materials were protected by copyright, the court wrote:

“The parties have presented various arguments for and against a finding of fair use. Genuine issues of material fact remain for a jury to determine regarding fair use.”

The consequence of this case, much like the outcome in the Georgia State e-reserves lawsuit, has the possibility to greatly impact our understanding and application of fair use.  It will also impact the validity of sites similar to Course Hero and any other entity profiting from the sharing of course materials.

Copyright and Course Materials

Here’s a story  that might be of interest to campus bookstores especially as custom coursepacks become more commonplace and as faculty incorporate more of their original materials into these coursepacks. 

The story talks about how distribution of course notes, lecture recordings, and exam copies has become an emergent commercial enterprise by brick and mortar and online entities.  

As this happens more often, many professors are concerned that their unique and creative work product, such as stylized lecture slides, detailed course materials, and syllabi, are being made accessible without their knowledge or permission.   To help counter the problem, universities have adopted policies prohibiting students from sharing course materials. 

For example, University of Virginia has recently implemented a policy related to recording of classroom lectures and distribution of course materials by students.  This policy states that recordings, course materials, and lecture notes may not be exchanged or distributed for commercial purposes, for compensation, or for any other purpose other than study by students enrolled in the class. Public distribution of such materials may constitute copyright infringement in violation of federal or state law, or University policy. Violation of this policy may subject a student to disciplinary action under the University’s Standards of Conduct. 

Other schools like Cornell have devised informational sites for faculty to assist them in locating infringing downloads and requesting take-down.  Cornell website lists these websites that are known to redistribute course materials.

• Course Hero http://www.coursehero.com/
• Rock My Midterm http://rockmymt.com/
• ScribD http://www.scribd.com/
• Notehall http://www.notehall.com/
• Koofers http://www.koofers.com/
• CampusBuddy http://www.campusbuddy.com/

Copyright Office's Priorities for 2011-2013

The United States Copyright Office released a report on the Office’s priorities and focus subject areas for the over next two years with respect to copyright policy and administrative practice and a series of new projects designed to improve the quality and efficiency of its services in the twenty-first century.   The Office’s policy priorities for the next 24 months are as follows, subject to new developments in the United States and abroad.  Some of the notable items, according to the Register, includes streamlining litigation, perhaps even a recommendation for a special venue for copyright litigation, Orphan Works, and Library exemptions.

STUDIES

Small claims solutions for copyright owners

Legal treatment of pre-1972 sound recordings

Mass book digitization

LEGISLATIVE WORK

Rogue websites

Illegal streaming

Public performance right in sound recordings

Orphan works

Copyright exceptions for libraries

Market-based licensing for cable an d satellite retransmission

TRADE AND FOREIGN RELATIONS

World intellectual property organization (wipo)

Trans-pacific partnership and other trade priorities

Priorities in Administrative law Practice

Prohibition on circumvention of measures controlling access to copyrighted works

Electronic system for the designation of agents under the dmca

Review of group registration options

Registration options for websites and other forms of digital authorship

Electronic administration of the statutory licenses

Recording notices of termination of copyright transfers

Special Projects

Study of fees and services

Revision of the compendium of copyright office practices

Technical upgrades to electronic registration

Dialogues and roundtables with copyright community

Research partnerships with academic community

Revision of copyright office website

Public outreach and copyright education

Business process reengineering of recordation division

Public access to historical records

Skills training for copyright office staff

UCLA Cleared of Copyright Infringement

University of California at Los Angeles recently prevailed in a copyright infringement lawsuit for streaming videos online.

According to the Chronicle, one copyright expert thinks the UCLA decision helps the HathiTrust digital-library consortium in its copyright lawsuit brought by the Authors Guild over the digitization of books from university libraries.

The Association for Information Media and Equipment (AIME) and Ambrose Video Publishing filed the lawsuit against UCLA for streaming a Shakespeare play for faculty and students to use as part of curriculum.  The plaintiffs asserted that UCLA violated copyright and breached its contract by duplicating DVD’s of the play that was acquired from Ambrose.

The judge in the case held that UCLA had not waived its constitutional “sovereign immunity,” a principle that prevents state universities from being sued without their consent in federal court.  The court also found that the association did not own the copyrights and therefore did not establish its standing to bring the case.

Chronicle interviewed James Grimmelmann, an associate professor at New York Law School who commented that “universities will have a little more breathing room for using media,” and “this decision will make the Authors Guild case against HathiTrust more of a long shot.”  “If the HathiTrust suit were to be decided tomorrow by the same court, it would be dismissed.” Mr. Grimmelmann says.

Further, Chronicle also quoted Kevin Smith, Duke University’s scholarly-communications officer, who says “because much of the dismissal hung on the sovereign-immunity question, “a major part of the decision applies only to state entities” and “does not translate to private universities.”

Copyright licensing on campus

Here is an interesting project going on at Stanford University. It is called the Stanford IP Exchange (SIPX) and the system is intended to provide tailored copyright licenses on campus. The project includes both print on demand (POD) and publishing on demand technologies, and addresses a problem we have heard from faculty at various institutions.  The custom coursepack business is, of course, a solid percentage of the textbook market, and is likely to increase in the future with many comparable initiatives underway.  This project has some interesting elements to it, however, and is another worth watching.

Digital Happenings

While the blog highlights many of the digital happenings affecting our industry, there is often more going on than we have a chance to cover. Here are some links to related stories that might be of interest.

• Campus Technology has an interesting article about the colleges that are remaking their campuses and designing learning spaces to accommodate student interaction and technology.
• CNET recently featured an interview with Ian Freed, Vice President of Amazon Kindle. Freed says that Amazon believes it has 70-80 percent of the e-book market.
• An article from eSchool News discusses the new copyright law that lets students and faculty in film or media studies courses legally “rip” movie excerpts to make commentaries, compilations, and other works.
• An article from Campus Technology discusses the news that Ohio’s Board of Regents will be working with Blackboard to create a statewide online learning clearinghouse.
• A recent article from NYU Press says that fifty-five university presses have expressed interest in participating in a University Press EBook Consortium to sell collections of e-books to academic libraries. The consortium will launch in fall 2011.
• A press release from the University of Scranton features praise from recent graduates for the university’s successful online learning program.
• A recent article from The NY Times compares the iPad (a multitasker device) to the Amazon Kindle (a specialist device) and says that early evidence suggests that some Kindle owners are also purchasing iPads and moving some of their e-book purchases to the Apple iBookstore.

TextbookTorrents.com shut down

Last week there was progress in the quest to end textbook piracy when the Textbook Torrents website was officially shut down in fear of a lawsuit. As noted in a previous posting, the website encouraged students to scan their textbooks into an electronic format so that other students could illegally download copies of the text. The welcome message on the website read,

“There are few scanned textbooks in circulation and that’s what we’re here to change. Chances are you have some textbooks sitting around, so pick up a scanner and start scanning it.”

According to a posting on TorrentFreak, a blog dedicated to news about BitTorrent, the admin of Textbook Torrents hopes that another replacement site will soon be available. When asked if he thought publishers had learned anything he stated,

“Intellectual property corporations are notorious for missing the point. Like I’ve said before, we were out to make a statement, to give out as much free stuff as possible, and I think we’ve made that statement - perhaps not as loudly as we could have given another few months and a little more perseverance - but certainly people have heard, and are talking. Piracy will never be sustainable for the textbook industry, but perhaps this is the first step towards a more sustainable model in the future.”

Surely the website has brought more attention to the issue of textbook piracy and many questions still remain on how to make content more affordable to students to prevent piracy in the future. Are you aware of any piracy prevention initiatives on your campus?

Textbook piracy

It has been said before, but it is worth repeating -- customers will eventually get what they want -- legally or illegally. Content piracy is a perfect example. In the P2P (Peer to Peer) space, piracy began with music because consumers wanted only part of an album (such as a song, rather than the whole CD). A while back I posted an article on this blog about Student Bay -- the initiative in Sweden involving content piracy for textbooks.

Just this week, there was an article in the Chronicle of Higher Education on textbook piracy. The article notes that:

One Web site, called Textbook Torrents, promises more than 5,000 textbooks for
download in PDF format, complete with the original textbook layout and
full-color illustrations. [...] Other textbook-download sites are even easier to
use, offering digital books at the click of a mouse.

The Textbook Torrents site encourages students to scan their textbooks into an electronic format and supply them for sharing on the site, much as Student Bay proposed ahead of them. This trend is likely to continue, and get worse, as long as students do not see the value of the textbook as reflected in its cost. As a quote in the article reflects:

"We knew that this would happen, and it has happened very rapidly," he said. "It's not going to go away—it's only going to get worse."

One of the pieces I found disconcerting in the article is one of the possible solutions:

He said that if the problem worsens, publishers may have to take other steps to prevent piracy, such as releasing a new version of most textbooks every semester. The versions could include slight modifications that could be changed easily—such as altering the numbers in math problems. "They may compelled to," he said, "in order to stay one step ahead of the pirates."

New editions even more frequently? That does not sound like a win-win for anybody -- particularly if cost is a driving factor promoting the illegal versions to begin with.

So what is the store's role in addressing this problem? Certainly many of us are aware of illegal versions of course materials on some campuses, posted by faculty or students into campus course management systems. The problem is a complex one -- but one that does affect us. Part of the solution lies in finding a way to allow students to get the content they want (such as just the chapters being used in class) at lower cost (which could mean digital). This is an important discussion in which stores have a stake. What innovative solutions can people think of to help address this challenge?

Follow-up piece on Copyright...

It seems draconian copyright protection is the norm today. I have spent a bit more time reading and researching the copyright and IP issues with the proposed Canadian bill. In doing so, I came across this article from New Zealand that came out yesterday. It references a discussion paper for an "Anti-Counterfeiting Trade Agreement" to be discussed at an upcoming G8 meeting. I have seen a few other references to such seizure of physical devices at borders. I wonder how it will really be implemented? My personal opinion here, but it seems like there are a lot of other things countries could be spending money on when it comes to enforcement, and it is not clear what benefit will come from this. It seems like it could be used more for international espionage than protecting IP rights. As with all things, there is more than one perspective. I am sure all of this proposal is very rationale to someone, and that in the media things have become confused or less clear. Could someone point me to some documents or provide some grounded information to help illucidate some of what is happening in this space?

Proposed changes to Canadian Copyright

A new Copyright Reform bill was introduced in the Canadian Parliament yesterday. The bill updates provisions related to digital rights management, P2P file sharing, and attempts to circumvent copyright protections. In one news article posted today, I thought it was interesting that Canada's Industry Minister couched this as a "Made in Canada" bill and not a replication of US copyright efforts. I also thought the fine structure was interesting -- minimal penalties for those downloading content illegally, and more hefty fines for those who post or distribute content illegally.

Another news article on the topic points to some serious concerns about the bill. As the piece notes:

Casting aside the concerns of major business, education, and consumer groups, the bill seeks to dramatically tilt Canadian law toward greater enforcement and restrictions on the use of digital content, leading Liberal industry critic Scott Brison to warn that it could result in a "police state."

The last comparison seems a bit dramatic to me, but reading these two and a few other pieces in the last hour does suggest that the emphasis of the bill is more on enforcement and DRM, then on promoting perspectives on intellectual property (IP) and copyright that are more in sync with protecting and balancing the rights of all stakeholders. It appears Canada is moving more toward the US model.

What would it take in Canada (and perhaps the states) to bring together the various stakeholders in one room to craft a policy that protects IP rights, while also protecting other interests? I expect that the IP and DRM issues around digital content are only going to become more varied and complex in the coming decade. Such legislation seems to protect some interests and not others, and could serve to slow down technological and commercial progress. Is there a better way?

Digital Content, IP and the Case of Georgia

One of the more interesting headlines in the past week is the story about alleged intellectual property rights violations at Georgia State University. More details on that case can be found in an article that appeared Wednesday in Insider Higher Education. Many of the responses to the article are as interesting (or more so) than the article itself. Another article on this case appears in this week's Campus Marketplace.

Of interest here is the application of copyright and intellectual property protection for digital course materials. It reminds me of the P2P or "Napster-like" piracy cases of music in the last decade. The authors, creators, and producers of content deserve to be properly recompensed for their work. At the same time, there is immense pressure to reduce the cost of content for students.

How many institutions across the country have the same or similar breaches over IP protection on their campus? What exactly is fair use in a digital context? More importantly, how do we work together to maximize the benefits and minimize the driving factors leading to this conflict of values: protecting IP versus making education affordable? As course materials become increasingly digital it also becomes increasingly important for us to resolve these and other questions. I can foresee this conversation getting even more muddy with open source textbooks, since most textbooks and course material content relies on getting permission clearance for the inclusion of images, text, or content. As we saw in the YouTube situation -- when is a "mashup" of content really something new, versus a violation of IP? Add to that the potential to reduce cost to students and the problem gets more complex yet.

This is an area that would benefit further discussion that includes a wider range of stakeholders. Perhaps by working together the stores, libraries, faculty, students, and university administrations could find a more effective solution that upholds both values. To quote Marc Fleischaker, NACS general counsel:

This case raises very complex, but very important issues. As we move more rapidly toward digital delivery, it is important for publishers, schools, stores, and students that the copyright issues be clarified. Digital delivery doesn't mean free delivery, and the concept of 'fair use' is not necessarily different merely because content is delivered digitally instead of physically. Most stores now obtain appropriate permission before putting materials in a coursepack. One would hope that the industry could reach a consensus through discussion about how to treat digital materials, but if it can't happen through discussions, it is not surprising that litigation results. We will follow this issue closely at NACS, and work to develop a model that can be successful for students, universities, stores, libraries, and publishers.

That is all I have to say on this topic for now, but I expect to see and hear more about IP issues and digital course materials over the coming 12-24 months. Can anyone reading this list provide some good links for readers that provide more information on this topic?