Molly Kleinman, University of Michigan Library

Molly Kleinman, University of Michigan Library makleinm@umich.edu
The Beauty of Some Rights Reserved: An Introduction to Creative Commons Molly Kleinman, University of Michigan Library This work is licensed under a Creative Commons Attribution License

Overview Copyright basics and author rights Using copyrighted work
Reproduction by libraries and ILL Introduction to Creative Commons Open Access, Public Access, and more Reaching out to faculty and researchers

Copyright Basics

The Congress Shall have power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. “U.S Capitol in Afternoon Light” by Amanda Walker. CC-BY Article I, Section 8, Clause 8 of the United States Constitution Photo by Amanda Walker

What is copyright? Copyright is a bundle of rights:
The right to reproduce the work The right to distribute the work The right to prepare derivative works The right to perform the work The right to display the work Can travel all together or be separated out. Items in a bag, etc.

Mommy, where does copyright come from?
Copyright happens automatically the moment a work is created, and lasts for the life of the author plus 70 years. You used to need a copyright symbol ©, and to register your work with the copyright office, but you don’t anymore. Copyright just happens. Moment something is “fixed in a tangible medium of expression.” Raise your hand if you’re a copyright holder. We all have more copyrights than we know what to do with, and the vast majority of those will never be profitable. And that’s okay, but it makes for a confusing system. Orphan works. Because copyright lasts so long, there are many many works for which the copyright holder is difficult or impossible to locate. This is especially true of many visual works like photographs, where the photographer’s name may never have been on the photo at all.

Requirements for Copyright Protection
Fixed in a tangible medium of expression Original work of authorship Creative “B&O tape recorder” by tobiastoft. CC-BY.

What copyright protects
Writing Music Plays Choreography Visual art Film Sound recordings Architectural works Copyright doesn’t protect… Ideas Facts Titles Data Useful articles (that’s patent) Copyright protects creative works. Patent protects useful articles.

The Public Domain Works in the public domain are free for anyone to use, without permission. Works published before 1923 Some works published between 1923 and 1963, but it’s complicated Works by the United States Government

The duration of copyright
Copyright, the good old days: 14 yrs. +14 yrs. And you had to register Copyright today: Life of the author + 70 yrs. No registration required (unless you want to sue) |

Term Extensions Source: Tom Bell, http://www.tomwbell.com
One of the biggest challenges is that terms keep getting longer. You may have bought things or digitized them thinking they could be made available soon, and then term extensions locked those works up for an additional 20 years. Source: Tom Bell,

Who is the copyright holder?
The creator is usually the initial copyright holder. If two or more people jointly create a work, they are joint copyright holders, with equal rights. With some exceptions, work created as a part of a person's employment is a "work made for hire" and the copyright belongs to the employer. Emphasize the joint works bit. In academia, there is often an emphasis on the first author - that’s the person who will sign the contract, or be considered the primary owner of the work. In fact, from a copyright standpoint, as long as a contributor added some element of written work, that contributor is an equal © holder. It’s important to understand the way copyright holdership works both for yourselves as creators, and for situations when you want to use someone else’s work. For published work, the most likely copyright holder is the publisher. Usually there’s a copyright notice that indicates as much.

How is copyright transferred?
Exclusive transfer, a.k.a. Assignment Copyright holder loses rights Must occur in writing Non-exclusive license, a.k.a. Permission Copyright holder retains rights Can be in writing or verbal

Copyright Transfer Agreement Exercise
Which agreement gives the author the fewest rights? Which agreement gives the author the most rights? What surprised you when you were reading these agreements?

Using Copyrighted Work

Exclusive rights, and limitations
Section 106 outlines the exclusive rights of copyright holders. Sections 107 through 122 outline all of the limitations on and exemptions from those exclusive rights. (Turns out copyrights are not as exclusive as you might have thought.)

Fair Use Section 107 There is no easy formula for determining fair use, but there are four factors to consider: The nature of the work (factual, creative) The purpose of the use (educational, for-profit) Amount of the work being used The potential impact of the use on the market for the original. That notice at the beginnings of movies and sporting events: bunk. In practice, a lot of it will depend on risk. There are uses that are probably fair owned by people who will probably sue, and uses that are maybe less likely to be fair, but there is no known copyright holder and so you’ll probably be okay. May also depend on your publisher, if you’re working with one. Some will require permission, or proof that something is in the public domain, before they’ll publish. Others will be more open with their interpretation. Work you do as a student gives you a great deal of leeway as far as Fair Use. Give special thought to things you’re putting online.

First Sale Doctrine Section 109
Allows anyone to lend, borrow, and re-sell physical copies of copyrighted works. “browsing for books at The Strand” by SpecialKRB CC-BY

Exemptions for teaching purposes Section 110
Often referred to as the TEACH Act, which is only the most recent update Applies to educational use, both in face-to-face classrooms and online Allows teachers to show or display all kinds of content, including music and movies, as long as it is relevant to the curriculum. Image is in the public domain. Source:

Clearing permissions Begin the process as early as possible.
Make your request in the manner preferred by the publisher, even if that manner is fax. Provide detailed information about the work you want to use and the way you plan to use it. Follow up regularly Obligatory mention of the Copyright Clearance Center (CCC)

Orphan works If you can’t figure out who the copyright holder is, or cannot get a response from the person you think might be the copyright holder, you are dealing with an orphan work. 75% of all books are out of print but still under copyright.

Break!

Reproduction by Libraries and Archives
Section 108: It’s a mess, but it’s our mess

Reproduction by Libraries & Archives Section 108(a)
1) Copies are made without any commercial advantage 2) The collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and 3) The copies must include a copyright notice

Unpublished Works Section 108(b)
The library or archive must own the work Copying only for preservation & security OR deposit for research & use in a library or archives Three copies If digital, access is limited to the premises If digital, and not otherwise distributed that way, They’re picky about premises. You might stretch it to a couple of buildings, but not to the students and faculty remotely. Campus-wide access is probably a no go. Talk about constraints and partnerships

Published Works - 108(c) Copying only
To replace a copy that is “damaged, deteriorating, lost or stolen” Or if the existing format has become obsolete Obsolete = rendering device no longer available or manufactured in the marketplace Only if an unused replacement is not available at a fair price 3 copies If digital, access is limited to library premises As you can see, while this provision provides minimal help, it is not really suitable for a digital environment. Thus far, attempts to expand and strengthen the 108 exceptions for a digital world have failed.

Interlibrary Loan - 108(d-g)
The copy must become the property of the user Library must have had no notice that the copy will be used for any purpose other than private study, scholarship, or research Library must display prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright “Systematic reproduction” in “aggregate quantities” is prohibited

CONTU Guidelines Commission on New Technological Uses of Copyrighted Works (CONTU) Drafted by a group of publishers, librarians, teachers, and other stakeholders Final Report released in 1978(!)

Rule of Five For works published in the last five years, a library may request no more than five articles from a single journal title in a calendar year. 5 articles + < 5 years old + 1 journal = Rule of Five “Five Years” by Michael Ruiz. CC-BY

CCG or CCL? OMG! CCG = Compliance CONTU Guidelines
CCL = Compliance Copyright Law Borrowing libraries must state which set of rules applies to each request Lending libraries are not responsible for confirming that the request complies with the relevant regulations, but they must require a statement of compliance.

Responsibilities Borrowers Include copyright compliance statement
Pay royalties on copies that exceed CONTU guidelines Keep records of all borrowing requests, filled or unfilled, for 3 years Lenders Display copyright notice Require compliance statement Deny requests that don’t comply w/ CONTU or © law Comply w/ licenses of electronic journals

ILL and Licenses Licenses beat limitations every time
Read your licenses Negotiate for more rights Find a way to track your licensed rights “Rock, Paper Scissors” by Jesse Kruger. CC-BY

Enter Creative Commons

A brief video interlude…

What is ? Creative Commons provides free legal tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry.

How can it help? Copyright comes with several rights, and creators may not want or need all of them. Creative Commons allows creators to mark their work with permissions, and it gives everyone a growing pool of resources that are free to use without asking. “CC on Orange” by Yamashita Yohei, CC-BY

Mix and Match Licenses Non-Commercial Share Alike No Derivative Works
Attribution Non-Commercial Share Alike No Derivative Works Creators combine the different elements to create a license that suits their needs, and tells users what they can and can’t do with the work.

The six major licenses Attribution Attribution Share Alike Attribution No Derivatives Attribution Noncommercial Attribution Noncommercial Share Alike Attribution Noncommercial No Derivatives

Three kinds of code Human Readable Lawyer Readable Machine Readable
“CC on Disk” by Yamashita Yohei, CC-BY

Human Readable Code

Lawyer Readable Code

Machine Readable Code <a rel="license" href=" <img alt="Creative Commons License" style="border-width:0" src=" /> </a> <br />This <span xmlns:dc=" href=" rel="dc:type">work</span> is licensed under a <a rel="license" href=" Commons Attribution-Noncommercial 3.0 License</a>.

What can be licensed? Photographs Video Articles Illustrations
Websites Music Any copyrighted creation, especially if it is online. “Decorate your Christmas with some CC schwags.” by laihiu. CC-BY

Where to find licensed work

How to use licensed works
Make sure that your use complies with the terms of the license If your work will be online, include a link back to the original work Attribute the original creator Include the Creative Commons license

Practical Attribution
“CC on Disk” by Yohei Yamashita, CC-BY

Choosing a license Do you hold the copyright?
Are you comfortable with people profiting from your work? Are you comfortable with people changing your work? Do you want derivatives of your work to carry Creative Commons licenses?

Applying a license Visit http://creativecommons.org to pick a license.
Copy and paste the code into your website.

A license notice This work is licensed under a Creative Commons Attribution Noncommercial 3.0 license.

Open Access, Open Education, Open Everything

What do we mean by open? Open to contributions and participation
Open and free to access Open to use & reuse with restrictions Transparency Slide created by Sarah Shreeves, re-used and licensed by permission

Open to contributions and participation
Slide created by Sarah Shreeves, re-used and licensed by permission

As opposed to… Slide created by Sarah Shreeves, re-used and licensed by permission

Open and free to access Slide created by Sarah Shreeves, re-used and licensed by permission

Open to use and reuse with few or no restrictions

Transparency Slide created by Sarah Shreeves, re-used and licensed by permission

Commonalities Generally enabled by technology
Works both inside and outside of traditional models Supported by a variety of business models Open ≠ Free Slide created by Sarah Shreeves, re-used and licensed by permission

Open movements Open access Public access Open source Open content
Open education Open data “Ambientes” by bachmont. CC-BY

Budapest Open Access Initiative, 2002
By 'open access‘ to literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited. Budapest Open Access Initiative, 2002

Key facts about Open Access
Enabled by technology Exists in harmony with peer review Works both inside and outside of traditional models Supported by a variety of business models “OPEN” by Tom Magliery, CC BY-NC-SA Slide text by Sarah Shreeves

Two (and a Half) Roads to Open Access
1) Open Access publishing 2) Author self-archiving 2.5) Hybrid: Commercial journals allow authors to pay to make articles freely available “The winding roads of Spain” by SKI Tripper, CC-BY,

1) Open Access Publishing
Peer-reviewed Tends to be electronic-only Supported by variety of funding models Institution / funder supported OR author-supported (2006 – 47% author supported) Generally allow authors to retain copyright and/or license under Creative Commons 4983 OA journals are indexed in the Directory of Open Access Journals across all disciplines Slide created by Sarah Shreeves, re-used and licensed by permission

Challenges for OA Publishing
Has taken time for impact factors to build Just beginning to get a real sense of what the costs are for supporting a high quality open access journal – business models still emerging Author pays model has better traction in the STM community Slide created by Sarah Shreeves, re-used and licensed by permission

2) Author self-archiving
Literature published through traditional channels that is made openly available through deposit in an online repository Repositories can be institutional, departmental, or discipline based Range of publisher policies on deposit Often post-prints (final author manuscript) can be deposited but publisher version cannot Slide created by Sarah Shreeves, re-used and licensed by permission

Disciplinary Repository

Institutional Repository

Challenges for Self-Archiving
Participation of faculty (particularly for institutional) Discipline based repositories often rooted in cultures used to sharing Questions of authority of pre-print/post-print Copyright issues murky and (often) frustrating Slide created by Sarah Shreeves, re-used and licensed by permission

2.5) Hybrid models Subscription based journals that allow the author to pay to make article open access Publisher Price Notes Elsevier Sponsored Article $3,000 A few journals Oxford Open $1,500 / 3,000 Lower price if institution subscribes; some journals Springer Open Choice All journals Wiley Funded Access Some journals American Chemical Society AuthorChoice As low as $1,000 Lowest price if institution subscribes & have personal membership Plant Physiology $1,000 / Free OA free for members of ASPB Slide created by Sarah Shreeves, re-used and licensed by permission

Common funding models Grants to publishers Author charges
Institutional subscriptions Society memberships Library publishing services Advertising “335/365 - February 17, 2009” by Meddy Garnet, CC BY

Compact for Open Access Publishing Equity (COPE)
…[E]ach of the undersigned universities commits to the timely establishment of durable mechanisms for underwriting reasonable publication charges for articles written by its faculty and published in fee-based open-access journals and for which other institutions would not be expected to provide funds. * Cornell University (fund information) * Dartmouth College * Harvard University (fund information) * Massachusetts Institute of Technology * University of California at Berkeley (fund information)

Open Source Free to download Open to modify Contribute back code

Open Content Licensed to permit reuse & remixing
Anything that’s copyrightable can become open content: images, text, music, video Open content licensing schemes include Creative Commons and the GNU General Public License

Open Education

Open Data Open access to the underlying reserach data, not just papers
Data should be available in reusable forms (not tied up in pdfs for example) – Data wants to be acted upon Working Group on Open Data in Science ( and Science Commons ( Slide created by Sarah Shreeves, re-used and licensed by permission

The NIH Policy, FRPAA, and Institutional mandates
Public Access The NIH Policy, FRPAA, and Institutional mandates

Public Access Mandates: A very brief history
Congress requested an NIH public access mandate in 2004; The NIH enacted a voluntary policy in 2005. In 2008, U.S. House and Senate passed a bill that included mandatory OA deposit for NIH funded research, and Bush signed it into law. Last month, the Federal Research Public Access Act (FRPAA, H.R. 5037) was introduced in the House (again).

The NIH Public Access Policy
The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

The Details of the Policy
Applies to all articles accepted for publication on or after April 7th, 2008 Affects research wholly or partially funded by the NIH Requires deposit in PubMed Central of final, peer-reviewed manuscript no later than 12 months after acceptance for publication. Is a legal obligation for researchers and a grant condition for institutions

Compliance with the Policy
Complying with the policy involves three elements: Obtaining copyright clearance from publishers Submitting the article to PubMed Central Subsequent citation of the article

Obtaining Copyright Clearance
An author can obtain the necessary copyright clearance to submit an article to PMC in one of three ways: 1. Publish in journals that do not claim an exclusive right to the copyright of the article. 2. Publish in journals that allow authors to comply with the NIH policy. 3. Amend the publication agreement with an author's addendum that includes language allowing deposit of the article into PMC

FRPAA Pending in the Senate
Would take the basic framework of the NIH mandate and apply it to all federal agencies that spend $100 million a year or more on extramural research Would allow deposit in any approved repository, not require a single central one. Would shorten the embargo to 6 months.

Mandates: Harvard, Stanford, MIT, Kansas, and more
Faculty governing bodies passed Open Access mandates for published work Nearly identical language, involving permission to the university to deposit in the IR, and including a waiver option Librarians provide support, especially in outreach and education

Reaching out to Faculty and Researchers

Why engage with faculty?
They are producers and consumers of the products of scholarly communication They edit journals, sit on editorial boards, provide peer review, and are officers of scholarly societies They are the movers behind many new models of scholarship (often because of their own frustrations with the traditional model) Because they can make change in ways that libraries struggle to do on their own Slide created by Sarah Shreeves, re-used and licensed by permission

What’s the faculty point of view?
What are the practices in a particular discipline? How does the scholarly society(s) approach scholarly publishing and communication? What’s the culture in the department and college? “Wikipedia – Art Historian” by quartermane. CC-BY Slide created by Sarah Shreeves, re-used and licensed by permission

Why Do Faculty and Researchers Publish?
To make an impact To build a reputation To engage with other scholars To secure grant funding To fulfill institutional and organizational expectations Professional advancement To make money Slide created by Sarah Shreeves, re-used and licensed by permission

Environmental Scan Review the scholarly communication environments for particular disciplines and help to identify advocates and allies within the faculty. “Taking in the view” by Molly Kleinman, CC-BY,

Questions to ask Who on the faculty are editors?
What are the major scholarly societies? What are their policies on author rights? Open access? Have any of the major journals published papers about scholarly communication in the field? Is there a disciplinary repository? Is it well used? Do the common funders have open access mandates? What are the tenure and promotion codes in the department? Are there faculty who are already involved in OA as editors, authors, or instigators? (Befriend them). Slide created by Sarah Shreeves, re-used and licensed by permission

Example: History Dept at Illinois

Example: History Dept at Illinois
Several editors of journals on faculty No disciplinary repository / no history of ‘pre-prints’ per se but seminars where working papers are shared seemed common Suspicious of depositing anything but the authoritative version of article into repository Decline of monographs/univ presses a concern for many Some concern that their research wasn’t exposed and some concern about control of their research Some interested in digital humanities but wouldn’t try it until tenure was received Slide created by Sarah Shreeves, re-used and licensed by permission

Supporting an OA mandate
Must come from faculty; the library should help behind the scenes Begin educating faculty about OA well before the mandate comes to a vote Include a waiver option in the policy Focus on author deposit, not OA publishing

What else can librarians do?
Include scholarly communication in subject librarians job descriptions Negotiate for self-archiving rights directly with publishers Collect and catalog OA journals / books / textbooks Consider supporting OA author fees When OA saves money, talk about it! Start an institutional repository, or get more people involved in the one you have. Negotiate for our rights when we publish! Slide created by Sarah Shreeves, re-used and licensed by permission

Resources ARL Environmental Scan Outline and Tools
Univ. of Minnesota Environmental Scan Example ACRL Scholarly Communication Toolkit Create Change – ARL, SPARC, and ACRL Peter Suber - Open Access News Directory of Open Access Journals: Sherpa/Romeo Publisher Copyright Policies and Self-Archiving:

Credits “B&O tape recorder” by tobiastoft. CC-BY. “Browsing for books at The Strand” by SpecialKRB, CC-BY “Five Years” by Michael Ruiz. CC-BY “Rock, Paper Scissors” by Jesse Kruger. CC-BY “CC on Orange” by Yamashita Yohei, CC-BY “A Spectrum of Rights” panel by Ryan Junell, “CC on Disk” by Yamashita Yohei, CC-BY “Decorate your Christmas with some CC schwags.” by laihiu. CC-BY “Ambientes” by bachmont. CC-BY “OPEN” by Tom Magliery, CC BY-NC-SA “The winding roads of Spain” by SKI Tripper, CC-BY, “335/365 - February 17, 2009” by Meddy Garnet, CC BYhttp:// “Wikipedia – Art Historian” by quartermane. CC-BY Slides 56-65, 69, 71, 74-75, 78-79, 82, 85, 95-97, , and 103 were created by Sarah Shreeves for the ACRL Scholarly Communications 101 Roadshow; used and licensed with permission.

Questions? Questions? “Whatcha doin?” by Molly Kleinman, CC-BY

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