Can Fair Use apply to data? – Fair Use Week 2016

Did you know that data cannot be copyrighted?  It’s true, data is factual, not creative and as and such it falls outside the bounds of U.S. copyright law. This means you can’t expect the same types of protection, or restrictions when it comes to data. And yet… You can get in hot water for republishing someone else’s data, why is this?

It has to do with an important nuance in U.S. copyright law: facts cannot be copyrighted but their “representations” can be. The most common types of data representations are tables, charts, and graphs. Animations, videos, and audio sequences can also be data representations but the 2-D types are far more common. These data representations are considered to have a creative element and are subject to copyright as compilations. Nacy Sims (@CopyrightLibn), University Copyright Librarian for the University of Minnesota, does a great job of explaining this in the video “Making Decisions About Your Research Data.”

There’s another important piece of copyright law to be aware of in regards to data representations. If you’re lucky enough to have access to the data used to create a representation you can create your own, new, data representation to which you’ll hold the copyright. This is a way out of situations where you need to reuse one of your own data representations in a new publication but no longer own the copyright to the original. Instead of seeking permission from the copyright holder (usually a publisher) you can generate a new data representation, just make sure it’s different enough to not infringe on the original.

Sadly in many cases creating a new representation isn’t possible because the underlying data hasn’t been shared. This is just one of the many reasons why data sharing is important – data hoarding hampers research. If you find yourself without the data needed to create a new representation then you will need to rely on the Four Factors of Fair Use (or seek reuse permission from the copyright holder).

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Is it Fair Use? Tools to Help You Decide

We’re well into Fair Use Week and you may be wondering how you can know when a use would be considered fair. Here is an overview of several of the copyright and fair use tools created by the library community for just this purpose.

Copyright

One of the first things to do is figure out if the material in question is still protected by copyright. This handy copyright slider from Michael Brewer and the ALA Office for Intellectual Technology Policy (caveat: last updated in 2012) can be used to determine if something is, or might still be, protected by copyright.

CopyrightSlider

This slider can be used in conjunction with the Stanford Copyright Renewal Database to search copyrights renewed between 1950 and 1992.

Fair Use

If the work is still protected by copyright, you may still be able to use it without licensing for certain kinds of uses.

Fair Use hinges on four factors:

  1. Purpose and character of the use
  2. Nature of the copyrighted work
  3. The amount and substantiality of the work used
  4. The effect on the market

There is no one comprehensive list available that will tell you if the use you are planning for a given work is fair. What you can use instead are the following tools that will help you decide for yourself if the use you are planning would be considered fair, keeping in mind the four factors above.

Fair Use Checklist link

Columbia University’s Fair Use Checklist is a good place to start. The checklist has sections for each of the four factors, with each factor divided into “favoring fair use” and “opposing fair use.” Upon completion of the checklist, you’ll have a better understanding of how your proposed use may be in line with fair use, or in opposition.

FairUseEvaluator

Another useful tool is the “Fair Use Evaluator.” This tool has you describe and assign a fairness rating to your planned use in each of the four areas, along with space for additional factors and a project description. The end result is a time-stamped record of your fair use evaluation. You can save the PDF as a record of your analysis and the data you used to support it should your use be challenged later on.

Fair Use for Teaching

Teaching has an additional option for fair use under the TEACH Act.

Exceptions for Instructors ToolThe Exceptions for Instructors tool will help you think about whether or not your proposed use might be fair in an educational context.

More copyright and fair use tools can be found at the American Library Association’s Copyright Tools page and Stanford University Libraries’ Copyright and Fair Use Center. While librarians and archivists can’t give you legal advice, we are more than happy to help you find the tools that can help you decide for yourself!

President Obama Nominates Dr. Carla Hayden for Librarian of Congress

Breaking news for Fair Use Week! President Obama just announced his nomination for Librarian of Congress: Dr. Carla Hayden.

If confirmed, Dr. Hayden will have a lot of “firsts” under her belt. She’ll be the first woman, first African-American, the first to enter the office with a 10-year term limit, and  the first to enter the office knowing that most work is produced, shared, and stored, digitally.  This is important because the duties of the Librarian of Congress include determining if a work is subject to DMCA prohibitions regarding technological access protection and also makes decisions related to the Fair Use of digital works.

Translation: the right to jailbreak your iPhone, remove DRM from old technology, digitize old videos, etc. are part of the Librarian of Congress’s duties.

President Obama’s introduction to Dr. Hayden was posted today on the White House blog.

 

Fair Use Week: Learning How Fair Use Works

One of the toughest aspects of fair use is determining how it should be applied to a situation at hand.  One of the ways legal scholars do this is to take a look at past cases (precedent) and extrapolate from those examples to the current situation. Back in May, Kevin Smith, J.D. reviewed a new tool from the U.S. Copyright office called the “Fair Use Index“, which provides about 170 such cases.  According to the site itself, “The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).” I’ll let Kevin Smith walk you through the rest.
Learning How Fair Use Works: http://blogs.library.duke.edu/scholcomm/2015/05/07/learning-how-fair-use-works/

Florida State University Faculty Senate adopts Open Access policy

Big news late last week out of Florida State University: Faculty Senate unanimously adopted an Open Access policy. 

Check out the policy statement here: https://github.com/fsulib/Office-of-Digital-Research-and-Scholarship-Docs/blob/master/oapolicy.md 

Congratulations to Florida State University and the Faculty Senate Library Committee- Task Force on Scholarly Communication.

Happy Fair Use Week 2016

Today marks the first day of Fair Use Week 2016! 

What is Fair Use Week? 

Fair Use week is organized by ARL (Association of Research Libraries) and is an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate stories, and explain these doctrines. (fairuseweek.org)

Perhaps a better place to start…

What is Fair Use? 

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. (copyright.gov/fair-use)

Give me an example from my life 

Easy.

Celebrate with us! 

Librarians love fair use. It gives us an opportunity to say “yes” to teachers and researchers when they ask about using material in classes or research articles. Throughout this week, a variety of Iowa State librarians will be contributing to our blog to further explore fair use. These postings may reflect on their own experiences using fair use–or they may share their favorite fair use conversations. Stay tuned to this blog all week for more!

Amazon to explore OER

Today in Inside Higher Ed, Matt Reed writes that Amazon, of Amazon.com fame, announced an upcoming project that will be a hub for OER. As Reed notes:

So Amazon is working on a site that will curate Open Educational Resources. The initial market is K-12, though I have a hard time imagining higher ed will be far away. They’re calling it Amazon Inspire, and it’s supposed to launch in a few months.

Hmm.

This could be very good or very bad. But I’m leaning towards very good.

On one level, of course, it’s fourteen kinds of awesome. I’m a big fan of OER, but I know that one of the major barriers to widespread adoption is the difficulty in finding material. Combining Amazon’s considerable skill at user-friendly search, and user reviews, with a repository of freebies would make exploration much easier.

Although we’ve seen major steps towards great hubs for OER discovery (Open Textbook Library and Digital Commons’ Teaching Commons for example), there are still barriers between users and OER. Perhaps, as Reed notes, Amazon’s venture could be a very good thing!

Developing story: Steal or be robbed

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.

-Aaron Swartz, Guerilla Open Access Manifesto

Twitter has been filled with news of SciHub the last few days. In case you missed it, SciHub is a website (created by Kazakhstani researcher, Alexandra Elbakyan) that bypasses journal paywalls and allows users (illegal) immediate access to millions of academic papers. Or as Big Think explains it:

The website works in two stages, firstly by attempting to download a copy from the LibGen database of pirated content, which opened its doors to academic papers in 2012 and now contains over 48 million scientific papers. The ingenious part of the system is that if LibGen does not already have a copy of the paper, Sci-hub bypasses the journal paywall in real time by using access keys donated by academics lucky enough to study at institutions with an adequate range of subscriptions. This allows Sci-Hub to route the user straight to the paper through publishers such as JSTOR, Springer, Sage, and Elsevier. After delivering the paper to the user within seconds, Sci-Hub donates a copy of the paper to LibGen for good measure, where it will be stored forever, accessible by everyone and anyone. —Simon Oxenham

This, of course, is not the first time that independent researchers have gone after the heavily guarded research holds of large commercial publishers. Aaron Swartz attempted it with JSTOR at MIT, researchers via Twitter used #icanhazPDF to skirt around paywalls, and others (intentionally and unintentionally) posted their own work to systems, like Academia.edu, without thinking about agreements with their publishers.

scihub.PNG

SciHub website (likely blocked in your area)

The intention is pure, if not noble. Research is often done at the expense of federal or state dollars and then sold by publishers like Elsevier at high costs. In turn, the expensive subscriptions are paid for by the same federal or state dollars that supported the research in the first place. (Example: a university hires the researcher, provides the lab, and then buys back that researcher’s research in the form of an academic journal subscription.) The problem, however, is that Elsevier, and other large publishers, have and WILL win the legal battles. Not only does Elsevier have a large legal team with seemingly unlimited resources ($$$), but more importantly it has a signed publishing agreement for every research article. These publishing agreements transfer copyright to the publisher and give authors few rights.*

While sources like SciHub and hashtags like #icanhazpdf may solve the immediate need (researchers getting access), it may not solve the larger systemic issue of publishers, like Elsevier, becoming the copyright holder of so many research articles. What we, especially as librarians, need to do is further educate researchers about the importance of author rights and promote the use of an author addendum. SPARC has a great webpage and an addendum that authors can submit along with their manuscript to assist in retaining copyright.

Perhaps the movement just needs #icanhazaddendum…

 

*For subscription journals.