Scholarly Communication in a Consumer-Licensed World: Understanding and Reducing the Legal Risk of Commercial Platforms for Popular Media

This is the fifth in a series of posts about each of the teams that will be attending SCI 2018, and their projects. This one was submitted by Will Cross.

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A Consumer-Licensed World

“Can I teach the film Black Panther in my American History course?” “We’re looking to archive tweets from the #MeToo movement.” “How do violent images in video games correlate to global rates of gun violence?” Questions like these animate instruction, librarianship, and scholarship every day, but each requires use of third party materials that creates legal risk that can be hard to understand and even more challenging to quantify. Traditionally scholars, librarians, and others in the academy have relied on a suite of legal exceptions that explicitly permit performance, analysis, and archiving of cultural materials. Grounded in the Copyright Act and in two centuries of common law, these exceptions have historically made the socially-valuable practice of scholarly communication safe and often quite simple. In recent years, however, changing technology and legal uncertainty have made navigating these questions seem to be one of the most risky things a scholar can do.

Scholarly communication relies on a stable set of legal rules and practices grounded in clarity about ownership and lawful use for close reading, library collecting, and scholarly analysis. With the rise of digital media, scholars and librarians have worked to navigate acquisition and use of licensed digital materials where there is no physical artifact to own. In particular, librarians have developed sophisticated practices for negotiating licenses that aim to recreate the open space needed for scholarly communication to thrive. Many well-resourced institutions have also brought legal experts into the library with a mandate to translate legal rules and practices for scholars working with digital and open materials.

In the recent years, however, access to music, film, television, and games has become mediated not just by database licenses, but by consumer-facing companies like Netflix, Spotify, and Steam that simply will not offer libraries a license at any price. Without reliance on the traditional body of copyright exceptions or any opportunity to negotiate, academics are forced to puzzle through licensing language that is silent or misaligned with scholarly communication, and to risk violating the terms of the agreement if they want to teach, analyze, or archive. Many scholars may have heard that penalties for copyright violation can be up to five years in prison and up to $250,000 in fines even where there is no monetary profit. Separate penalties for breach of contract and even fear of violating the Digital Millennium Copyright Act’s anti-circumvention provision raise the stakes further. In light of these perceived dangers, text mining, archiving, and culturally-sustaining pedagogy can seem like they just aren’t worth the risk.

The current legal quagmire has left scholarly communication in a market stalemate. With no clear avenue to license this content, many libraries and scholars are unwilling to engage with these services, and those that do often feel compelled to do so sub rosa. In turn, this lack of visible engagement sustains the sense that the academic market is small enough to ignore, so no institutional license option is created. Because no one is at the table, no one will come to the table. Even if these companies did offer a license, reliance on a purely market-based solution carries its own set of risks. As we have seen with academic publishing, a scholarly communication system built on licenses from for-profit providers quickly becomes unsustainable when deprived of the necessary legal safety valves. A solution that reduced risk by creating a new “big deal” for consumer-licensed content would be no solution at all.

These issues are expected to come to a head in 2018. Congress is currently considering the Music Modernization Act, a bill that would rewrite many of the core assumptions about licensing in this area. The Second Circuit Court of Appeals is considering the ongoing Capitol v. ReDigi case, examining the question of how the first sale doctrine should be applied to digital materials. The law is about to change once again, and the academic community needs to take an active role in shaping that change as well as helping our peers understand and navigate it. As music, film, games, and even public communication are increasingly shared on commercial platforms governed by non-negotiable terms of use, the greatest risk would be to resign ourselves to this situation based on fear and misunderstanding, or to abdicate our role as advocates for a more sustainable legal and scholarly communication system. Public scholarship, open pedagogy, and archiving the culture of our lived experiences all require that we engage with these issues, and that engagement must not be limited to exclusively wealthy institutions that can afford to keep a full-time legal expert on staff.

Libraries, scholars, and instructors need clear guidance on the real risks and opportunities for their work in this new environment. To provide this guidance, this proposal brings together a team that can design resources to help individuals and institutions accurately calibrate the true level of risk and identify a path forward. This team has substantial experience in legal advocacy and is also prepared to develop a strategy for legislative and judicial action in support of scholarly communication. All members have deep legal expertise and roles that are focused on offering practical, actionable solutions. Members also have a strong track record of designing information and advocacy materials, from amicus briefs and Copyright Office RTC documents to local and national user-focused guides and best practices.

Individuals on the team have written and spoken on the issue in a variety of contexts. What is needed is the concentrated time to bring this cohort together to develop a plan and set of materials for offering guidance that helps users understand the real risk of engaging with consumer-licensed materials and platforms, as well as a strategy to advocate for a clearer, more open copyright system that supports, rather than undermines, academic values and practices.

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Team Members

  • Kyle K. Courtney is the Copyright Advisor for Harvard University, working out of the Office for Scholarly Communication. He works closely with Harvard Library to establish a culture of shared understanding of copyright issues among Harvard staff, faculty, and students. His work at Harvard also includes a role as the copyright and information policy advisor for HarvardX/edX. His “Copyright First Responders” initiative was profiled in Library Journal in 2013, and he was named a National Academic Library Mover & Shaker in 2015. In 2014, he founded Fair Use Week, now an international celebration sponsored annually by over 80 universities, libraries, and other institutions.
  • Will Cross is the the Director of the Copyright & Digital Scholarship Center in the NCSU Libraries and an instructor in the UNC School of Information and Library Science. Trained as a lawyer and librarian, he guides policy, speaks, and writes on open culture and navigating legal uncertainty. As presenter coordinator for the ACRL Scholarly Communication Roadshow, he has developed training materials and led workshops for international audiences from Ontario to Abu Dhabi. His research focuses on legal frameworks that support open culture and he currently serves as PI on two IMLS-funded projects on support for OER and open pedagogy. He currently serves as a SPARC Open Education Leadership Fellow and an OER Research Fellow for the Open Research Group.
  • Eric Harbeson is Music Special Collections Librarian in the University of Colorado Boulder Libraries, and curates the American Music Research Center’s collections. He holds master’s degrees from Cleveland State University (music history) and the University of Illinois (library and information science).  His research interests include copyright and information policy (especially with respect to libraries), the use of emerging technologies in archives applications, and early music notation.  His edition of the Motecta (1590) by Orazio Vecchi (with co-editor William R. Martin) was published in 2013.  He has performed as a percussionist with several local organizations, including the Ars Nova Singers, the Denver Early Music Consort, and the Seicento Baroque Ensemble.
  • Carrie Russell is the director of the Program on Public Access to Information in the Washington Office of the American Library Association. Her portfolio includes copyright, international copyright, accessibility, e-books, and other public policy issues. She has an MLIS from the University of Wisconsin-Milwaukee and an MA in media arts from the University of Arizona. She authored two books on copyright including Complete Copyright: An Everyday Guide for Librarians and Educators, winner of the 2013 ABC-CLIO award for best book in library literature.
  • Tucker Taylor – is Head of Circulation at Thomas Cooper Library at the University of South Carolina; she has over 25 years of experience in library access services and regularly works with copyright issues. Tucker is a founder and co-editor in chief of Journal of Copyright in Education and Librarianship. She is also a founder and co-chair of South Carolina Library Association’s Scholarly Communications Interest Group. As a member of the University of South Carolina Libraries’ Scholarly Communications Team and the South Carolina Affordable Learning Task Force,  Tucker has provided copyright education for librarians and faculty throughout South Carolina. Tucker regularly presents on copyright, predatory publishing, and open access issues.

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The primary outcome of this project will be guidance for individuals and institutions for sustainable engagement with consumer-licensed content, as well as a plan of action for advocacy around related political and legal issues. This will be grounded in rigorous legal analysis to be published in scholarly articles, white papers, and best practice documents in the vein of the ARL’s Best Practices for Fair Use statements. The Journal of Copyright in Education & Librarianship is prepared to offer a special issue on the topic, featuring scholarship from leaders on copyright, licensing, and academic practice.

While these formal documents are critical for informing institutional practice, individuals in the field will need a different type of resource. This team will also create materials to support hands-on training, informal learning, and popular engagement. Members of this team have a strong track record of creating engaging, whimsical resources like ALA’s Office of Information Technology Policy (OITP) Section 108 Spinner, Fair Use Coasters, and Fair Use Evaluator. Other members have done similar work making complex issues approachable and fun through “Copyright First Responders” teams, ACRL Scholarly Communication Roadshow workshops, and multimedia resources.

In addition to formal legal and library-focused scholarship and popular resources, this team will begin to develop an advocacy plan for engaging with current legal challenges like the ReDigi case and Music Modernization Act. Library and academic advocacy has been effective in earlier cases such as the Supreme Court’s Kirtsaeng v. John Wiley decision and in the ongoing Copyright Office battle over orphan works and collective licensing, and this team will develop a plan to engage with content holders such as Netflix, Steam, and Hulu as a profession and to advocate for a clearer system that support scholarly communication at all levels of government. This will leverage the legal expertise of team members, as well as the political experience and connections of the team to the American Library Association and to international events such as Fair Use Week.

Individual members of this team have worked together in the past on events such as a preconference hosted by Courtney, Taylor, and Cross at the 2018 National Media Market and had informal conversations at a number of events over the past year, but the full team has never had the time or space to work together. All members are committed to beginning work over the summer, with in-person time available at the Kraemer Copyright Conference in June. The team will also gather digitally to begin developing resources for tracking legal developments, preparing overviews of relevant case law, and brainstorming engaging strategies for articulating and navigating the risks involved in this area. The team will arrive in October ready to clarify these complex issues and develop a plan that mitigates risk to make scholarly communication sustainable in a world dominated by commercial platforms.

[ Top photo by Dan Schiumarini used under Unsplash free license. Other photos from Pixabay used under CC0 license. ]

2 thoughts on “Scholarly Communication in a Consumer-Licensed World: Understanding and Reducing the Legal Risk of Commercial Platforms for Popular Media

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