Christina Hernandez. Colleges to Copyright Electronic Material. Newsday. Jan. 20, 2008. The Newsday editors’ headline reflects a misunderstanding of the issues, and (if he was quoted correctly) AAP representative Adler engages in a rhetorical stretch when he claims all three schools established their guidelines “in conjunction with” AAP. Nevertheless, the publishers’ saber rattling over electronic reserves continues: this is an extension of the Cornell-AAP “agreement” we wrote about in October 2006.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 22, 2008, edition of Copycense Clippings.)

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“Surveys reveal that both adults and children (aged 12-15) have very high levels of awareness and understanding of the basic principles of intellectual property. However, young people feel that copyright regimes are unfair and unjust and a big age gap is opening up. The implications for libraries and for the information industry of a collapse of respect for copyright is potentially very serious.” — University College London.

Information World Review. My Generation. Jan. 17, 2008. This passage on copyright is but a snippet of a report whose main focus is on information seeking behaviors. We find it interesting, however, and would like to see an independent American researcher conduct a rigorous, well designed social science study of high school and college children to gain their perspective on copyright.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 22, 2008, edition of Copycense Clippings, and it was a Quotes of the Week selection.)

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The Copyright Clearance Center (“CCC”) is an organization about which many information professionals have formed opinions. The opinions vary from positive to negative; they may be formed based on direct involvement with the company or its representatives, or through hearsay. The organization plays a pivotal role in the symbiotic, yet often contentious, relationship between those people and entities that need information and those who wish to make it available. But CCC also has become – fairly or unfairly – a lightning rod in an environment that has elevated copyright law into the forefront of social, political, legal, and commercial discourse.

As CCC’s president and chief executive officer, Tracey Armstrong is responsible for managing the delicate balance between collecting licensing revenues for copyright owners and advocating for new ways to deliver information to end users. Armstrong, who has worked for the organization since 1989, became CCC’s CEO last summer, succeeding Joseph Alen. The organization she leads earned more than $175 million for the fiscal year that ended June 30, 2007, and has enjoyed strong growth for several consecutive years. At the same time, she takes over the company in a time of unprecedented legal flux, and will be expected to maximize licensing revenue and company earnings in the midst of uncertainty.

During an hour-long interview that Copycense executive editor K. Matthew Dames conducted with Armstrong earlier this year, Armstrong indicated she welcomes the challenge.

The January 2008 edition of Online magazine will feature a substantial portion Dames’ interview with Armstrong, which is one of the first extensive interviews a CCC executive has given in several years. Both candid and engaging, Armstrong answers questions about CCC’s organization and structure; the business’ opportunities and challenges; and CCC’s role in the larger debate about access to information.

The full interview will be republished on Copycense in Spring 2008.

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Correction: Copyright Clearance Center Inc. is a New York not-for-profit corporation. As such, CCC does not earn profits, as a previous version of this post indicated.

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(Editor’s Note: This article accompanies a lecture K. Matthew Dames gave Oct. 9, 2007, to the Digital Libraries class (IST 677) at Syracuse University’s iSchool. The Fall 2007 class is taught by University Librarian Suzanne Thorin and Angela Ramnarine-Rieks, web administrator at Syracuse University Library.)

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“Concern for those who elected you is representative democracy, not corruption; moreover, as noted above, in the case of copyright, until just this year, the copyright committees have been chaired by individuals who had no constituent interests and therefore tried to make policy as they saw fit. That we disagree with their view of policy doesn’t make their view corrupt. The Copyright Office, for example, has testified in favor of term extension and the other bills people find objectionable, and it is immune from the sort of “corruption” at issue. Tarring those who don’t see things the way we do as ‘corrupt’ is incorrect and a poor way to convince them to see things the way we would like.

“At the same time, campaign finance reform has long been a pressing need, and if Professor Lessig can provide constructive assistance in that effort, we will all be grateful.”

The Patry Copyright Blog. Copyright, Corruption and “Corruption.” June 21, 2007.

Of all the people out there that call themselves copyright experts, there are several reasons why we think Bill Patry is one of the few that deserves that title and stands at the top of the heap. One of the most important reasons, in our view, is his ability to see and explain copyright clearly through several different perspectives.

Despite its beginning, Patry’s post is not about Lawrence Lessig’s decision to “retire” from copyright advocacy. It is about the legislative process, specifically as that process applies (or is applied) to copyright laws and regulations. Patry challenges Lessig’s suggestion that “corruption” was at the root of Congress’ decision to pass the Copyright Term Extension Act (.pdf) in 1998, and in doing so summarizes four decades of Congressional committee history to support his ultimate contention: elected officials serve the interests of their constituents, and except in rare instances, corruption (or “corruption”) has nothing to do with their political positions.

We have seen parts of the copyright legislative process as it applies to libraries and often have lamented how often libraries and library patrons get shortchanged. We’ve often thought (and have written in this space) that “corruption,” as defined by Lessig, may have been part of the reason library representative organizations (LROs) have not received all they have wanted.

But we also have thought (and have written in this space) that LROs have not been as effective in playing the political game as they could be. Returning to the term extension issue, we opined in our Lessig piece last week that the term extension issue lacked a clear focus on ultimate harm to a wide range of people. LROs spent much time and money doing all the official things that needed to be done: including lobbying Congressmen, writing amici briefs, and distributing alerts to their membership.

Still, LROs — as did Lessig — failed to engage the regular Joe and Jane Doe on the term extension issue in a way that would have fueled the public outrage necessary for elected officials and federal judges to look beyond the law and consider public policy. That has nothing to do with corruption (or “corruption”), but is simply a decision to execute a strategy that ultimately did not bring the desired result.

And who’s to say that what LROs want is good for libraries or is good public policy? Further, many could reasonably argue that Section 108 is proof positive that libraries have not gotten shortchanged in the legislative process.

This leads us to a conclusion that Patry’s post suggests: instead of complaining about being the victims of “corruption,” maybe parties involved in lobbying for a balanced copyright law would be more effective in their legislative and judicial interventions if they become more effective advocates for the public at large, instead of for the institutions they represent. In particular, LROs have been staunch advocates for open access to information. Restrictive copyright inhibits open access to information, which affects the public in a variety of ways. But are libraries and librarians making this clear to the public in a way people can understand?

For example, how could have LROs better engaged the public to demonstrate that term extension is not some issue reserved for nine judges and two advocates who choose to argue legal and constitutional abstractions on October 9, 2002, but instead an issue that may keep a 10-year-old girl in Iowa from creating the next great animated character because a large corporation wants to shackle culture to stuff its wallets?

In other words, how can LROs and others concerned with balanced copyright make it plain? As much as we rant in this space about the “piracy” frame, we concede it is brilliant and effective because it is plain. Those concerned with balanced copyright must find a way to make their issues as plain to the public and Congress as copyright holders have made “piracy” plain to the public and Congress.

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A recent thread on the listserv Liblicense prompted some observations about the utility of fair use in an environment where contracts increasingly govern the legal relationships between creators, copyright owners, and customers. Additionally, these are issues I consistently address in my annual copyright seminar at Syracuse University’s School of Information Studies.

Since the issues are so important in today’s information environment, and since Copycense readers may not subscribe to the Liblicense listserv, I have decided to repost my comments over the next two posts.

The title of the thread is “Fair use / fair dealing - a fantasy?” A complete listing of all the comments in the thread is available from the Liblicense archives. The first issue I addressed in the post concerned the preemption doctrine, particularly the effect of contracts on copyright law provisions. My post follows:

“1. Preemption

I’ve researched and written about the contract vs. copyright issue quite a bit, particularly as it applies to the limitations that most often apply to information professionals (Sections 110, 109, 108, and 107). The issue concerns state vs. federal law preemption, an issue that simultaneously cuts across the Supremacy Clause in Article VI of the U.S. Constitution, Section 301 of the Copyright Act of 1976, and a raft of cases beginning with Judge Easterbrook’s 1996 opinion in ProCD v. Zeidenberg, 86 F.3d 1447.

“The preemption issue arises when authors’ or users’ copyright rights appear to be either enlarged or reduced by contract (such as in the instant example of a publisher’s contract to publish a journal article). To the general question whether contracts may deal with copyrighted material, the answer is obviously yes. The preemption challenges are more likely to relate to the attempted contractual extension of copyright rights beyond those granted by the Copyright Act, or the reduction of the rights that users have traditionally enjoyed apart from contract. Most cases conclude that as long as the terms of the contract (written under state law) do not occupy the same area as that reserved to copyright law (federal law), then the terms of the contract under state law will be valid and binding.

“Therefore, my understanding of the issue echoes that made by a prior contributor to this thread: the general rule is that once a contract is in place, the terms and conditions of the contract prevail over federal copyright law because a contract is considered to be a private bargain between private actors (whom are presumed to have equal bargaining power to negotiate the terms and conditions of the contract). I am assuming, of course, that the contract is valid under applicable state law.

“The ProCD case (7th Circuit) is cited to often as the prevailing doctrine in this area, but my notes indicate that the Third and Fifth Circuits hold differently. Typically, this is the sort of split that begs for a Supreme Court ruling. I suppose that case is coming soon to a theater near you.

“If we use ProCD as the prevailing doctrine, then one could question whether *any* copyright exceptions (Sections 110, 109, 108, and 107) are preserved in an information landscape awash with digital information. I think we all can reasonably agree that the contract is the dominant legal construct that governs access to and use of digital information. If the ProCD doctrine is the prevailing doctrine, then it seems to me that the only way to preserve any copyright exceptions — including fair use under Section 107 — is to negotiate those exceptions back into the terms and conditions of the contract.

“As that applies to the publishing example mentioned in this thread, this means that an author would have to negotiate each and every exception (or parts thereof) back into a final journal publication contract. Otherwise, there is no guarantee that the author will be able to make use of any of those exceptions; unless specifically negotiated into the publishing contract, we must presume that all of the exceptions under the Copyright Act — including fair use — are off the table.

“This points to the critical importance of contracts in an environment governed by digital information. This also points to the importance of knowing copyright law even within the realm of license or contract negotiation, since you cannot negotiate back into a contract what you do not realize is available under federal copyright law. So, to the extent that one must negotiate a fair use exception back into a state law contract even though it exists as a federal law exception, once could say that fair use (as are most other exceptions) is a fantasy today.

“But even if you know how the game is played, having the leverage to get a publisher to change its contract terms and conditions is a different story altogether.”

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A few months ago, a colleague approached me with an interesting request. He wanted me to review a prospective job posting for a new position he was hoping to fill in his organization. If my colleague moved forward with his plan, he would hire a high-level executive whose primary responsibility would be to negotiate and sign contracts to buy electronic resources.

This position seemed to be tailor-made for a librarian. The position would report to the head of a large institution that values instant and timely access to a wide range of sources, and would be a lead official for an organization with several large information centers stretched across a number of different territories. Further, the position would partner with the organization’s general counsel to handle contract negotiation duties.

The organization’s annual electronic content budget is comfortably in the seven-figure range, and my colleague seemed willing to pay far beyond the embarrassingly low salaries I have seen for various electronic resource librarian positions.

In commenting on the job posting, I told the colleague that the prospective position seemed like a fabulous opportunity. The person in that position would have to deal with a variety of information, legal, and business issues: changes in copyright law; providing content for increasingly smaller devices; juggling different delivery formats; and the possibility of having to educate the general counsel on these content licensing issues.

(It is rare that in-house counsel has expertise in content licensing because it is an unusual procurement function to those outside the information profession.)

Unfortunately, I also expressed dismay that he may have to surrender his hope of filling this position with a librarian, since my experience and observation has been that too few librarians – new or experienced – have any experience or training in buying content.

When I started writing Information Today’s “Intellectual Property” column a year ago, my first piece was about the paucity of copyright education, both in ALA-accredited library schools and through continuing education channels for experienced librarians. Now, in this article, I’ll discuss another yawning gap in contemporary information professional education: the lack of training in licensing electronic content.

An Information Today exclusive.

K. Matthew Dames. Librarians and Licensing. Information Today. March 2007. Page 18.

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