A Hearing Regarding Fair Use and Baby Steps Toward Open Access

Subcommittee Hearing Regarding Fair Use

Yesterday, the Subcommittee on Courts, Intellectual Property, and the Internet of the Judiciary Committee heard testimony regarding fair use. This testimony was in response to the actions of some members of Congress currently considering whether to propose a bill to statutorily expand or minimize fair use. The individuals who testified at the hearing yesterday included Professor Peter Jaszi, the faculty director of the Glushko-Samuelson Intellectual Property Clinic at the American University Washington College of Law; Professor June Besek, the Executive Director of the Kernochan Center for Law, Media and the Arts at the Columbia Law School; Ms. Naomi Novik an author and co-founder of the Organization for Transformative Works; Mr. David Lowery, a singer, songwriter, and lecturer at the Terry College of Business at the University of Georgia; and Mr. Kurt Wimmer, the General Counsel at the Newspaper Association of America. Each of these individuals offered written and oral testimony that covered the full gamut of how numerous individuals believe how fair use should be applied to new digital technologies.

Before examining some of the testimony given by these individuals, let us quickly reexamine the doctrine of fair use. According to the doctrine of fair use, one may use another creator’s copyrighted work, or portion of their work when the subsequent user meets the standards laid out in the fair use test. Also remember, although originally created by case law, fair use is a statute that has been passed by Congress. In general, if one meets three or more of the four prongs in the statutory fair use test, he or she should feel confident in using a copyrighted work. If one meets only two prongs of the test, there is some risk involved. If one meets only one or less of the prongs of the fair use test, then one should look to similar items that meet the fair use test, that are licensed for use with a Creative Commons license, that are designated as open access, or one should return to the tabula rasa and commence a new path.

In reviewing the above-mentioned statute, some members of Congress recently stated they would like to either expand or contract the doctrine of fair use, hence the subcommittee hearing yesterday. As predicted, the testimony at this hearing varied as some quipped pro-expansion comments and others advocated for contraction in the utilization of fair use. For example, Kurt Wimmer’s testimony seemed to suggest he believed fair use was working well with the transition of print newspapers to a digital format. Naomi Novik, who co-founded the Organization for Transformative Works advocated that fair use should be expanded and strengthened to meet the needs of new digital technologies. Whereas, Professor June Besek at the Columbia Law School advocated for a contraction of fair use warning that interpreting the fair use doctrine with few boundaries to what a subsequent user may do with a copyrighted work is worrisome.

Despite the attention to the hearing yesterday, it is unlikely Congress will amend the fair use doctrine any time soon. For one thing, this current Congress does not have a stellar record of passing a lot of legislation. If an amendment did pass, it likely would be tacked on to a larger piece of legislation. However, not tweaking fair use, for now anyway, is probably positive for libraries. Remember when legislation is passed it is up to our courts to interpret the legislation, and that interpretation is usually to what citizens, libraries, and other entities are supposed to adhere. Today, despite various appeals and possible negative oral argument at the appellate level, it still appears that the progress of such cases as Cambridge University Press v. Becker and the Authors Guild v HathiTrust reveal positive headway for libraries and the academy’s use of materials for educational purposes via fair use. Further, for those who do not like the manner in which fair use is currently being implemented, have you ever heard the saying “the devil you know is better than the devil you do not know?” In other words, if Congress tweaks or issues a massive overhaul of the fair use doctrine the courts would ultimately be given a fresh stab at interpreting such newly revised legislation. Since the judicial progress of cases interpreting our current version of the fair use statute is mostly pro-use, if you will, it might behoove libraries if Congress leaves fair use as is, for now, and instead consider offering a more liberal approach to section 108 of title 17 of the United States Code. Such liberalization of this statute could offer more explicit latitude for libraries to digitize content and make it publicly available. Also, it would be helpful if Congress would give more consideration to passing legislation that strengthens open access without extended embargoes.

Omnibus Appropriations Bill

Speaking of open access, Congress recently passed an Omnibus Appropriations Bill that is a step in the right direction in improving access to taxpayer-funded research. This legislation directs federal agencies (with research budgets more than $100 million per year) within Labor, Health, and Human Services and Education to provide online access to articles funded by that research, however, these articles may be subjected to a 12 month embargo. This legislation is more legally robust than the White House Office of Science and Technology Policy (OSTP) Directive on Public Access issued by President Obama a few months ago, however, it is hopeful Congress will soon consider putting forth legislation that promotes open access and does not permit such extended embargoes. For example SPARC is currently calling for this law to be strengthened by decreasing the embargo period to 6 months, making access to these materials available via a centralized repository, and providing universal access to these materials.

Doug Campbell - Embedded Librarian

Librarian Doug Campbell has been recognized all over campus and even on the Denton Square. What’s the cause of all the recognition? A caricature of his face, featuring a distinctive beard and glasses, along with the slogan “Doug Your Librarian on Location,” has appeared on posters created by Residence Life.

“It’s working like crazy,” he said. “They ask if I’m the Doug on the poster. It’s like my 15 minutes of fame. I’m loving it.”

The posters advertise Campbell’s and UNT Libraries’ reference services. Campbell spends a designated amount of time each week in three residence halls as part of an initiative called Homework Help.

Campbell is part of a trend of “embedded librarians,” in which, as technology changes, librarians are becoming more mobile and coming to their audiences. At UNT, 25 serve as library liaisons in the disciplines in which they specialize.

The project fits under bold goal No. 1— providing the best undergraduate experience in Texas — and No. 3— becoming a national leader in student support.

To learn more, please see the full article in UNT's InHouse: Better than a search engine.

UNT Libraries to Receive Archives from The Dallas Way Agreement

The Dallas Way, a nonprofit organization dedicated to gathering, storing, organizing and presenting the complete history of the city’s gay, lesbian, bisexual and transgender community, has entered into an agreement  with the University of North Texas Libraries to ensure that current and future materials collected by the organization will be permanently archived, digitized and made accessible to the public.

Created in 2011, the Dallas Way consists of lay historians who interview members of the LGBT community and record their experiences, and present some of the stories to the public through its Outrageous Oral storytelling series. The UNT Libraries will receive audio and video recordings of the interviews and Outrageous Oral events as well as books, newspapers, meeting minutes, photographs, promotional posters and other materials acquired or created by the Dallas Way. The materials will be known as The Dallas Way LGBT Collection of the UNT Libraries. 

Dreanna Belden, the UNT Libraries’ assistant dean for external relations, noted that board members of The Dallas Way “are very well-connected in the community and have been integrally involved in the formation and inception of several iconic Dallas gay organizations,” including the Dallas Gay Alliance, the Foundation for Human Understanding and the Turtle Creek Chorale. 

To learn more, see the full article in UNT News: UNT Libraries to receive archives from The Dallas Way Agreement signals start of organization's archive collection.

CLIR Publishes Research Data Management: Principles, Practices, and Prospects

The Council on Library and Information Resources (CLIR) has published Research Data Management: Principles, Practices, and Prospects. The report examines how research institutions are responding to data management requirements of the National Science Foundation, National Institutes of Health, and other federal agencies. It also considers what role, if any, academic libraries and the library and information science profession should have in supporting researchers’ data management needs.

University of North Texas (UNT) Library Director Martin Halbert opens the report with an overview of the DataRes Project, a two-year investigation of data management practices conducted at UNT with colleagues Spencer D. C. Keralis, Shannon Stark, and William E. Moen. His introduction is followed by a series of papers that were presented at the DataRes Symposium that UNT organized in December 2012.

“Research data management is one of the most important new strategic issues facing research universities,” notes Halbert. “Academic libraries now must decide what stance they will take toward this increasingly prominent category of institutional research content. Academic leaders must now begin to make prioritization decisions regarding the preservation of research data, or these important intellectual assets will continue to be gravely at risk.”

“The thing that really surprised me from this research was how very few universities have policies governing research data management,” said DataRes researcher Keralis, who is also director for digital scholarship and research associate professor with UNT Library’s Digital Scholarship Co-operative. “At the close of the project it seems there’s a great reluctance to engage with this issue at an institutional level, and that’s going to have to change if these federal mandates continue.”

Additional papers in the volume are contributed by Kiyomi Deards, of the University of Nebraska-Lincoln, who provides an overview of data management services at four land-grant research universities. Chris Jordan and colleagues from the Texas Advanced Computing Center summarize several national-scale cyberinfrastructure projects for data management and discuss the relationship of national and regional responses to data management requirements. Anthropologists Lori Jahnke and Andrew Asher examine research ethics and the problems of data sharing.

The volume includes a copy of “The Denton Declaration: An Open Data Manifesto,” written in May 2012 by a group of technologists and librarians, scholars and researchers, university administrators, and other stakeholders who gathered at UNT to discuss and articulate best practices and emerging trends in research data management.
 
“The DataRes report comes at a critical moment in the data management conversation,” said Rachel Frick, director of CLIR’s Digital Library Federation program. “I hope our community will use this report to inform and evaluate its work.”

The report is available as a PDF download free of charge at http://www.clir.org/pubs/reports/pub160.

Kennedy Assassination Materials Available on The Portal to Texas History

During the hours and days that followed President John F. Kennedy’s assassination in Dallas on Nov. 22, 1963, Dallas Police Department officers gathered numerous eyewitness statements, fingerprints, affidavits, correspondence and homicide reports for not just Kennedy’s assassination, but also the murder of Officer J.D. Tippit the same day of the assassination, and the murder of alleged assassin Lee Harvey Oswald by Jack Ruby two days later.

People who vividly remember the events of 50 years ago, as well as younger generations, will soon be able to view these 11,406 pages of investigative materials on the University of North Texas Libraries’ Portal to Texas History.

To learn more, see the full article in UNT News: UNT Libraries makes Kennedy assassination materials available on Portal to Texas History.