Copyright Category


Appeals Court Rules on Georgia State’s E-Reserves Case: Back to Lower Court

Last week a federal appeals court reversed the a judge’s decision from May 2012 that ruled in favor of Georgia State University, whose library wanted to be able to make freely available as much copyrighted material as possible via electronic reserves. This is actually not bad news for libraries, as attested to by several copyright experts.  Kevin Smith, scholarly communications officer at Duke, points out in a recent blog post:

  • The court agreed that potential copyright violations should be addressed on an “item by item” basis, which allows universities to make individualized fair use decisions.
  • The court agreed that when evaluating whether e-reserve copying counts as fair use, it should be relevant that university libraries are nonprofit, educational institutions and are not making money off of course reserves.
  • The court rejected the lower court’s 10% or one chapter rule.  The appellate judges instead advocated for “a more flexible approach that takes into account the amount appropriate for the pedagogical purpose.”
  • The court agreed that if a publisher had not made it possible for libraries to license excerpts of a copyrighted work, then libraries do not harm the market for the publisher’s products by copying the desired excerpts and making them freely available.

Smith concludes that the publishers in the case have lost big for what were fighting for, that is to “radically change the landscape.”

Read more:

Ga. State’s Loss in ‘E-Reserves’ Case Might Actually Be a Win for Librarians, Chronicle of Higher Education, Oct. 20, 2014

Nancy Sims, of University of Minnesota, has an astute analysis of the case.

There is a thorough and smart analysis of the ruling from Nancy Sims of the University of Minnesota found here. – See more at:
There is a thorough and smart analysis of the ruling from Nancy Sims of the University of Minnesota found here. – See more at:
There is a thorough and smart analysis of the ruling from Nancy Sims of the University of Minnesota found here. – See more at:

Streaming Media Makes Obtaining Content Harder for Libraries

An article in The Chronicle reveals the all-too-real frustrations of obtaining digital content for academic libraries, like the University of Iowa.

How Streaming Media Could Threaten the Mission of Libraries, by Steve Kolowich


In March 2011, the University of Washington’s library tried to get a copy of a new recording of the Los Angeles Philharmonic, conducted by Gustavo Dudamel, playing Berlioz’s Symphonie Fantastique that the library could lend to students. But the recording was available only as a digital download, and Amazon and iTunes forbid renting out digital files.

So the librarians contacted the Philharmonic to see if there was some way they could get a copy of the album that they could lend out like a compact disc. The orchestra referred them to a distributor, which referred them to the publisher, the Universal Music Publishing Group. At first the corporation said it couldn’t license the recording to the university, according to the librarians. Later it offered to license 25 percent of the album for two years in exchange for a licensing fee plus a $250 processing fee.

No thanks, the librarians said.

Welcome to content licensing, a great source of anxiety for librarians in the digital era.

….The licensing of digital media, however, gives publishers far more power. Instead of selling an album outright, they can sell permission to access its contents for a fixed amount of time. (This is a boon for textbook publishers in particular. Under a digital regime, they may not have to worry about losing sales to students’ buying used copies.)

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The new Authors Alliance aims to assist authors with their rights

Excerpted from an article by Jennifer Howard in the The Chronicle of Higher Education:

“A new nonprofit group wants to help authors understand all of their options. Called the Authors Alliance, it’s led by several academics and writers, including Pamela Samuelson, a professor of law and information at the University of California at Berkeley. She has long been a major voice in copyright discussions and has been a moving force behind friend-of-the-court briefs filed in closely followed copyright-infringement cases, including a lawsuit that pitted another authors’ group, the Authors Guild, against Google over its mass digitizing of books.

The new alliance is part of an attempt to develop a positive agenda around copyright, she says, and to arm writers, and perhaps policy makers, with information that will help them make decisions.”

Read full article here.

And, for more: Kevin Smith, a copyright expert and librarian, explains why he joined the Authors Alliance, and how it differs from the Authors Guild, in his most recent blog posting.


Publishing Agreements, Nature, and Moral Rights of Authorship

Nature Publishing Group

Nature Publishing Group

Nature Publishing Group (NPG), a prestigious journal publisher for the Environmental, Life, and Physical sciences, has been receiving attention for language included in the publishing contracts they require authors to sign once a research paper has been accepted. Kevin Smith, the director of the Office of Copyright and Scholarly Communication at Duke University, noticed that, in addition signing away the economic rights to their articles, authors are asked to waive their “moral rights” to their work. From the license:

“The Author(s) hereby waive or agree not to assert (where such waiver is not possible at law) any and all moral rights they may now or in the future hold in connection with the Contribution and the  supplementary Information.” [NPG License to Publish, Clause 7]

Mr. Smith argues that this clause threatens the core scholarly principle of an author to be attributed to her work. NPG has responded to this by clarifying their reasoning for the clause: “The “moral rights” language included in our license to publish is there to ensure that the journal and its publisher are free to publish formal corrections or retractions of articles where the integrity of the scientific record may be compromised by the disagreement of authors.” While retractions are not uncommon in scientific literature, it is unclear why licenses to publish do not explicitly assert a right to correct or remove fraudulent or erroneous research findings.

As the creator of an original work, you have the right to make sure that your publishing agreements reflect your best interests. For assistance with publishing agreements, contact your department’s librarian or read more about retaining your Author’s Rights.


Elsevier Issues Take Down Notices to for Breach of Copyright has received roughly 2,800 takedown notices from Elsevier for copyright infringement, reported by The Chronicle of Higher Education late last week. is a social network for academics to “share research papers” and has over 6 million registered users. Users of the site can create a profile, identify their institution and research interests, and upload their papers and CV to share among their peers. However, when an author publishes a paper in a journal, the journal publisher oftentimes requires an agreement that transfers copyright ownership of the paper to the publisher and restricts the unauthorized distribution of that paper. In this case, Elsevier, a major academic publisher, is compelling to remove papers for which Elsevier owns the copyright.

This incident is part of a larger conflict in scholarship between authors and publishers over the issue of copyright. When the business interests of publishers interfere with the scholarly interests of authors, there needs to be a negotiation toward a middle ground. A useful tool in this negotiation is the Author’s Addendum. The addendum stipulates:

“The Author shall, without limitation, have the non-exclusive right to use, reproduce, distribute, and create derivative works including update, perform, and display publicly, the Article in electronic, digital or print form in connection with the Author’s teaching, conference presentations, lectures, other scholarly works, and for all of Author’s academic and professional activities.” [Download PDF]

This addendum can be attached to any publishing agreement that requires the transfer of copyright for a scholarly journal article. The agreement is similar to the licensing agreements that are freely available from Creative Commons and are commonly applied by Open Access publishers like the Public Library of Science, PeerJ, and Open Humanities Press. For more information about the Author’s Addendum or Open Access publishing, contact your department librarian. The sharing of research is fundamental to the advancement of ideas and negotiating for more equitable rights to your work helps ensure that this practice continues in your favor.


Defending the Cultural Commons: the Avant-Garde and Information Activism, by Stephen Voyce

Today’s Open Access Week guest post comes from Stephen Voyce, Assistant Professor in the University of Iowa’s English department. It is an excerpt from an essay titled “Toward an Open-Source Poetics: Appropriation, Collaboration, and the Public Domain”, originally published in the journal Criticism (53.3 [Fall 2011]: 407-38). Professor Voyce will be participating in today’s panel discussion on academic publishing and open access. It will be held at 3 pm in room 1117 of the University Capitol Centre, and refreshments will be served. Find more details here about this event and Open Access Week at the University of Iowa. We hope you’ll join us.

Defending the Cultural Commons: the Avant-Garde and Information Activism

Stephen Voyce

In many ways the practices of appropriation and distributed creativity in recent poetry are part of a broader movement to enlarge and protect a public cultural commons. The term commons can refer to natural resources, public spaces, transportation, social institutions, information and research, government infrastructure, and network technologies. Thus, the commons contains material assets (e.g., parks, forests, water), intangible resources (e.g., the public domain, government research), and virtual environments (e.g., public radio, the Internet). A motley array of resources and public spheres converge within its signifying power and receive its protection from collective, democratic control. The radical market exploitation of the commons in recent decades has muddled distinctions between private and public realms of ownership (and since so many of the spaces in which subjects interact are now devoted to consumer practices, there is also a comparable muddling of our roles as citizens and consumers). Moreover, there has been little discussion of the public domain outside the disciplines of law and economics. Jessica Litman observes that, in the legal field, public domain works are often referred to as “unprotectable or uncopyrightable”; not only does this account of the public domain ignore its central role in subsequent literary production, it seems also to confer a peculiar nonstatus on any noncommercial object. We are led to conclude that an object not defined by property lacks proper existence. Since we lack a precise language to describe the commons, it has by default come to denote the residue of property. Responding to this challenge, James Boyle calls for a twenty-first-century information movement akin to the formation of the environmental movement during the 1960s. For this to take place, however, scholars like Boyle and Litman contend that a reinvigorated language of the commons is a necessary precondition if one hopes to mobilize communities to protect it.

The cultural activities of open source programmers and literary organizations like the Poetry Research Bureau, UbuWeb, and Information as Material afford both a theoretical and practical point of departure. Beyond the already multifarious range of meanings we give to the commons, from at least the fourteenth century onward, the term also affords a synonym for community (L. communis). Digital networks create countless possibilities for storing, distributing, and sharing cultural resources. These are the principles upon which networked collectives such as UbuWeb establish affiliations, codevelop their ideas, and present their work. Hence, UbuWeb functions both as a site of shared resources and as a site of community formation, and should be thought of and defended as such. Parks, squares, campuses, recreation centers, and social networking sites historically function as spaces in which communities form and mobilize as political subjects. One must apply this same logic to the public domain.

Next, we should conceive of the commons as a practice—and thus inject a logic of the commons into the fabric of our thoughts and actions. Again, both open source code sharing and UbuWeb’s commons-based poetics are instructive. Theories of authorship often mystify creativity by concealing the collective production of culture and its reliance on past traditions. Critiques of individual creativity appear all the more convincing with reference to contemporary poets, musicians, and authors whose challenge to proprietary definitions of authorship is the very hallmark of their practice.

To this end, the role of the avant-garde in the twenty-first-century is finding renewed purpose. The militaristic origin of the term avant-garde is well known. Renate Poggioli, responding to the legacies of futurism, imagism, and vorticism, argues that the formation of an avant-garde is essentially agonistic: the movement is defined “against something or someone”—and typically the academy or the general public. Although agonism appears within Greek, Christian, and Romantic traditions, “avant-garde agonism” refers to a radical form of opposition, a paradoxical affirmation of “self-sacrifice” by a “collective group” on behalf of the principles it advances. This now canonical definition of modernist experimental practice overshadows the intensely social projects of community building undertaken by artistic communities throughout the twentieth and twenty-first centuries. It is this social imperative that gives direction to contemporary practice. The role of artistic and literary collectives today need not jettison agonism as such, but rather its sometimes elitist, chauvinistic, fascistic, and eschatological associations. The responsibility of the avant-garde will instead require an activistic obligation to create and fortify public domains of open source knowledge, to challenge excessive restrictions placed on language and information, to bring forth marginalized knowledges from a position of inaccessibility to the public at large, and to produce and share artistic tactics and works that challenge intellectual property. That which is at stake is nothing less than open accessibility to culture. Hence, writers and artists are becoming more collaborative and interdisciplinary, drawing on the general and specialized skills of archivists, programmers, academics, and community organizers. Recalling the syncretic logic of Wershler-Henry’s the tapeworm foundry, this form of political organization is recognizable in the formal politics of the poem: literary communities begin to participate in the struggle for the commons by advancing an open source artistry as the central axiom of their practice by insisting that the signifying codes that one develops belong to a community that shares, adapts, and transforms its many possible uses. 


Stephen Voyce is an Assistant Professor in the English department at the University of Iowa. His work examines twentieth-century poetry and culture, print and digital media, and the history and politics of literary movements. His recent book, Poetic Community: Avant-Garde Activism and Cold War Culture (University of Toronto Press, Spring 2013), addresses several key poetic groups collaborating after World War II. He is currently working on a book project titled Open Source Culture: Literature, Appropriation, and the Public Domain, which investigates how late-twentieth-century poets, fiction writers, and artists creatively subvert intellectual property law and the regimes that enforce these policies. He is a member of the University of Iowa’s Digital Studio for Public Arts & Humanities and the director of the Fluxus Digital Archive.


US District Court judge again rules against publishers suing Georgia State

On Friday US District Court judge Orinda Evans ruled against publishers seeking an injunction that would have imposed restrictions on faculty wanting to use copyrighted material in courses. She also required the publishers to pay Georgia State’s attorney fees.  In a story from Inside Higher Ed Steve Kolowich reports “In the course of explaining her decision to make the publishers foot the bill for the university’s legal defense, the judge declared what observers have been opining for months: “On balance,” she wrote, “the court finds that the defendants are the prevailing party in this case.” For the opinion itself see


US News & World Report takes on academic journal publishing

In a long piece online at its web site, Simon Owens of US News and World Report offers an overview of academic (chiefly scientific) journal publishing and the rise of open access. See Is the Academic Publishing Industry on the Verge of Disruption?” Starting with the recent Harvard letter on journal prices (see Transitions for April 23, 2012), the article reports on moves toward open access publishing, and resistance from commercial “closed access” publishers.


Reforming Copyright

Pamela Samulelson writes about Google books, orphan works, the Digital Public Library of America (DPLA) and the possibility of reforming copyright law in the Chronicle of Higher Education.

” Copyright should be shorter in duration, more balanced, more comprehensible, and normatively closer to what members of the public think that it means or should mean.

Although we are not likely to get comprehensive reform anytime soon, perhaps we can persuade Congress to make some more modest reforms.

We know it is now possible for the cultural and scientific heritage of humankind to be made available through a universal digital library such as the DPLA. It would be a grievous mistake not to bring that future into being when it is so clearly within our grasp.”


Injunction Proposed in Georgia State Ruling

Inside Higher Ed reports that the drama over a copyright lawsuit filed by the Association of American Publishers against Georgia State University continues.

Following a ruling largely negative to the AAP, the plaintiffs have proposed an injunction which  “…would prohibit Georgia State professors from making unauthorized copies that are not “narrowly tailored to accomplish the instructor’s educational objectives” and do not “constitute the ‘heart of the work’ ” from which they are excerpted, among other criteria.”

Read the fully story by Steve Kolowich at