Creative Commons and archives at the ICA Congress

This week I am in Malaysia for the International Council on Archives 2008 Congress in Kuala Lumpur. Please forgive any typos; the jet lag is intense. I’m here because a former grad school classmate of mine, Anne Bast, has been interning with the ICA and arranged for me to come do some presentations with her about, what else, Creative Commons. It’s one of those “power of the network stories” that sounds too good to be true, but it’s not, because here I am.

Our first presentation, Beyond Copyright: Creative Commons and new approaches to intellectual property in the archive, was this afternoon. Miriam Nisbet of UNESCO’s Communication and Information Sector joined us to talk about some of the copyright and cultural heritage initiatives UNESCO is promoting on an international scale. Anne and I talked about copyright issues in archives from an international perspective, with an emphasis on the role Creative Commons licenses can play in helping to open up archival materials for both access and re-use. We covered a lot of ground in 45 minutes: copyright basics, copyright challenges in archives, intro to Creative Commons, how to integrate CC into the archival process, a look at some cultural institutions that are using CC, and UNESCO’s take on supporting and promoting the public domain. It was a lot for one session, but I think all the pieces fit together well.

I learned a few things at our talk. UNESCO’s work with archives and libraries sounds incredibly valuable, and apparently it is one of the top sites in the world for downloading free and open source software. One of the focuses there is on the dearth of material online in languages other than English, and UNESCO is working to promote and foster web development projects that will contribute to a linguistically diverse web.

A subject that came up during the question period was the challenge of finding legal advisers that can tolerate a little risk. Many institutions are finding that their legal counsel objects to any project that involves possibly copyrighted work and the internet. We’re starting to see some exciting projects that involve digitizing large quantities of archival materials and sharing them online, and some of them, like the Flickr Commons partnerships, involve works with uncertain copyright status and what some attorneys might find an unacceptable amount of risk. The organizations involved, including Flickr (which is owned by Yahoo), decided that the enormous public good that would come from having these large bodies of photographic work available online outweighed the small risk that a copyright holder might come forward and object to the use of a few images. The result is a vibrant new way for the public to engage with previously hidden collections, not just viewing and downloading them, but also tagging and adding other useful metadata. If archives are to remain relevant in the digital age, archivists must be willing to stick their necks out and take a few risks with their copyright-ambiguous collections. An archivist from Hong Kong said that her solution had been to take matters into her own hands and educate herself as much as possible about the law. This way, she could make a reasoned and informed decision, even in the face of lawyers who only say “No.”

Anne and I are doing another presentation on Creative Commons on Thursday. This one will be a workshop focused on the nitty gritty of Creative Commons: what it is, how to use the licenses, etc. I’m looking forward to hearing more from the participants, who really did come to the Congress from all over the world, and have had a variety of experiences to do with copyright and archives. Even though archives aren’t really my field, much of what I’m learning here is relevant to libraries and universities as well.

APA’s godawful NIH compliance policy

The title about sums it up. The American Psychological Association’s policy for complying with the NIH Public Access policy is godawful.

Here are the details, from the Digital Koans blog:

The American Psychological Association’s “Document Deposit Policy and Procedures for APA Journals” outlines its policies and procedures regarding the requirements of the NIH Public Access Policy. It indicates that authors are not to deposit accepted articles in PubMed Central. Rather, the APA will do so, billing the author’s institution a $2,500-per-article fee. Upon acceptance, the APA will deposit the author’s Word file “with all changes based on peer-review editorial feedback and found acceptable by the editor.” The APA will retain the article copyright, and authors are not allowed to deposit the final peer-reviewed manuscript in any other repository. A deposit form must be submitted for each article.

In other words, authors may not keep any rights at all in their work, and taxpayers must pay $2,500 per article to access the results of research we already funded. If researchers wish to publish with the APA, this is their only option; they may not choose to deposit the article in PubMed Central themselves in order to avoid the fee.

The kicker is where the policy states “The deposit fee of $2,500 per manuscript for 2008 will be billed to the author’s university per NIH policy.” Um, no. That’s not in the policy. Here’s the entire text of the policy, from the NIH Public Access website:

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.

I see a lot of articles that begin, “Librarians are up in arms about…” These days that sentence usually ends with “Google,” but this policy offends me way more than Google’s scanning project ever could. It’s appalling, unadulterated greed, coming from an organization that purports to represent the interests of psychologists and the public good.

Take a look at the APA Mission Statement:

The objects of the American Psychological Association shall be to advance psychology as a science and profession and as a means of promoting health, education, and human welfare by

  • the encouragement of psychology in all its branches in the broadest and most liberal manner
  • the promotion of research in psychology and the improvement of research methods and conditions
  • the improvement of the qualifications and usefulness of psychologists through high standards of ethics, conduct, education, and achievement
  • the establishment and maintenance of the highest standards of professional ethics and conduct of the members of the Association
  • the increase and diffusion of psychological knowledge through meetings, professional contacts, reports, papers, discussions, and publications

thereby to advance scientific interests and inquiry, and the application of research findings to the promotion of health, education, and the public welfare.

That last bullet – about increasing the diffusion of psychological knowledge – is exactly the opposite of what the new deposit policy aims to do, which is to lock up psychological knowledge and hold it for ransom.

So which is it, APA? The engouragement of psychology and the maintenance of the highest standards of professional ethics? Or ruthless exploitation of your own author/members, at the expense of American taxpayers?

Update (7/15/08, 10:50 pm): The bit about the fee being charged “per NIH policy” has been removed from the site. Thanks for the heads up, Kathleen!

Update 2 (7/16/08, 11:47 am): Lots of people must have objected to the policy. Now the site says:

A new document deposit policy of the American Psychological Association (APA) requiring a publication fee to deposit manuscripts in PubMed Central based on research funded by the National Institutes of Health (NIH) is currently being re-examined and will not be implemented at this time. This policy had recently been announced on APA’s Web site. APA will soon be releasing more detailed information about the complex issues involved in the implementation of the new NIH Public Access Policy.

Thanks Darlene and David!

Weezer’s “Pork and Beans” video is everything wonderful about the Internet

Before you read this post, go watch the music video for Weezer’s Pork and Beans, if you haven’t already. While you watch, you can play Count the Meme, or just check out the video’s Wikipedia entry, which catalogs every meme reference with links to the originals. Warning: You may lose several hours tracking down all the videos that Weezer used and watching them, watching them again, then watching the Weezer video again. Or at least I did. I’ve done my best to embed or link to the videos I’m talking about so you don’t have to go searching.

For those of you who don’t know what a meme is (Hi, Mom!), here’s a quick definition from Wikipedia: “A meme consists of any unit of cultural information, such as a practice or idea, that gets transmitted verbally or by repeated action from one mind to another.” In Web-speak, it generally refers to a goofy video or image that becomes insanely popular and spawns a series of imitations and parodies, like cat pictures with silly captions, or home movies of babies laughing.

One common characteristic of web memes is that they frequently include pieces of copyrighted popular culture, sometimes remixed or adapted, and sometimes simply copied and added to. Fan scholar Henry Jenkins calls this “convergence culture,” by which he means “complex interactions and collaborations between corporate and grassroots media.” Corporate media companies sometimes fret over these grassroots appropriations/infringements and sometimes turn a blind eye, but there is no denying that these fan works are highly creative, and they’re already shaping and defining the culture of the early 21st century.

Which brings me to Weezer. The “Pork and Beans” video references and incorporates no fewer than 29 different memes (if Wikipedia is to be believed), and many of the memes’ originators also appear in the video. It’s a delightful reversal, in which a mainstream band copies and references the work of ordinary people, work that has no commercial backer and only ever appeared on YouTube. “Pork and Beans” is a joyful celebration of democratized creativity, and also one hell of an entertaining mash-up.

What makes it all the more interesting, from a copyright-and-creativity-and-the-Internet perspective, is how many of the memes that Weezer copies are themselves copies. There’s the Numa Numa guy, who lip synchs to a popular Romanian dance tune, Ryan vs. Dorkman, the outrageously well-executed light saber battle acted and edited by a pair of high schoolers, and the kids who recorded one of the many many many homemade Souljah Boy dance videos (the original of which has its own references both to previous generations of copyrighted pop culture and to homemade web video). It’s a tangled web of reference and counter reference, one in which controlling and protectionist attitudes toward copyright have no place.

Just for fun, here’s one thread of the Pork and Beans Creative Influence Goose Chase that I particularly enjoyed:

Daft Punk is a band. They make electronic music, and their lyrics are often simple and repetitive. They like to dress up as robots. Some of their videos, like this one, feature a distinctive style of dancing.

Some guy decided to make a video called “Daft Hands,” in which he displays all of the lyrics to Daft Punk’s song “Harder, Better, Faster, Stronger” written on his hands.

A pair of college students saw the “Daft Hands” video and were inspired to go one better. They made “Daft Bodies,” with all of the words to “Harder, Better, Faster, Stronger” written on various body parts, and then they took it a step further by including Daft Punk-style robot costumes and dance moves.

Then Weezer decided to include both the “Daft Hands” guy and the “Daft Bodies” girls in their video, with Weezer’s lyrics written on the hands and bodies. So many layers of reference! So many questionable yet awesome uses of copyrighted material! That Weezer included both Daft Hands and Daft Bodies highlights a key element of web memes: the instant a video achieves a modicum of popularity, people start posting responses, parodies, and imitations. Daft Hands spawned dozens of videos for all kinds of songs featuring lyrics written on hands, and it also spawned Daft Bodies, which spawned dozens of videos of people dancing in their underwear with lyrics written on their bodies. And it’s all happening in a space – YouTube – that makes it incredibly easy both to credit and track influences, even as copyright is studiously ignored.

It’s just so darn cool. And while the Framers could never in their wildest dreams have imagined the phenomenon that is the Dramatic Prairie Dog, I think this kind of sharing, adapting, and building was just what they had in mind when they wrote about promoting the progress of Science and useful Arts. The content holders who rail against the Internet as hostile to copyright, or a haven for pirates, are missing the boat. The Internet is not hostile to copyright. Copyright law is hostile to the Internet, and much of the creativity that happens there. The sort of freewheeling adaptive culture you find on YouTube doesn’t have to be at odds with copyright law, or even with the interests of copyright holders, but that’s how our broken system currently works.

Lucky for us that doesn’t stop kids with basic video editing software and a passion for Harry Potter from making stuff like this:

[Hat tip to Jason for showing me the video and suggesting the idea for this post.]

Update: Here’s a page that links to most of the videos that appear in “Pork and Beans”

Copyright panel @ AADL, featuring Gilberto Gil

As a part of Ann Arbor Summer Fest, the Ann Arbor District Library hosted A Panel Discussion on Digital Culture and Internet Rights. The headliner, if panels can be said have headliners, was Gilberto Gil, Brazilian Minister of Culture, superstar musician, and Creative Commons evangelist extraordinaire.

Gilberto Gil with Guitar, photo by Joi Ito

The other panelists were local luminaries in the areas of music and copyright: Mark Clague, Associate Director of the UM School of Music, Theatre & Dance’s American Music Institute; Jessica Litman, expert on copyright law, author of Digital Copyright (2001), and Professor of Law at the UM Law School; and Christopher M. Taylor, a shareholder practicing in Butzel Long’s Ann Arbor office in the areas of media law, intellectual property, technology and e-commerce. The moderator was W. Kim Heron, editor of the Metro Times and former radio dj.

I thought it was terrific that this panel was held at the public library. The location was a completely appropriate place to talk about improving public access to culture by bending copyright to suit the needs of the people. It was especially valuable for me because I am so accustomed to discussing these issues in the context of scholarship and academia. While the scholarly publishing crisis did come up, and there were two academics on the panel, overall the evening emphasized popular culture and public access.

I’ve struggled to capture all the great conversation that happened that night, both among the panelists and with the audience, but here are a few key themes.
Copyrights in the hands of big media are very different from copyrights in the hands of creators
As Jessica Litman put it, “Even though copyright vests automatically in authors, we’ve made it really easy to sign away your rights, and really hard to get them back.” When Gil was first starting out in music fifty(!) years ago, he had to sign away all his rights to his record label. 35 years later, when he tried to get those rights back, it took seven years and a lawsuit, and the record company still owns the physical copies of the original recording. When Warner controlled all the copyrights, the songs were only available for sale, and if a recording was out of print, there was nothing Gil or anyone else could do about it. Now that he controls his own rights, Gil has released everything under a Creative Commons license that allows remixing, and his songs can become part of the larger musical discourse.

Part of the problem, to quote Jessica Litman again, is that “Copyright law was designed to make sure that you need a copyright lawyer.” These days everyone is a copyright holder, but in order to leverage that power, you have to understand the law, and the law is nearly impossible for ordinary people to understand. This gives big corporations with armies of lawyers an immense advantage over artists, most of whom have never heard of Creative Commons and don’t understand how much they’re giving up when they sign away their copyrights.

Culture should belong to the people
According to Litman, copyright traditionally concentrated control in a few hands, the hands of the publishers, record companies and movie studios, in a way that disempowered the original creators. It made economic sense when you needed printing presses and recording studios, but not any more.

Mark Clague made the point that we tend to think of the production of culture as separate from societal structures like law. But law has a huge influence on culture, and in the case of copyright law, it profoundly shapes how culture is produced, shared, and adapted. The idea behind Creative Commons is that cultural products, the goods produced by culture, should be available to the people of that culture, to the society that produced it. Intellectual property and copyright laws tend to block or interfere with that availability. CC licenses give authors the authority to establish permissible uses in a way that democratizes culture.

Gil spoke about the background of Creative Commons in Brazil. Lawrence Lessig worked with law professors in Brazil to adapt the licenses to Brazil, and the professors promoted the new licenses and started a movement. Gil joined them, both as a musician and as the Minister of Culture. He said that the value of Creative Commons in Brazil was that it “empowers people, the community, street people, to produce their own culture and promote their own culture and sell their own culture.”

“The technology is anarchistic at its core”
Gil had a terrific riff about the fundamental nature of technology. With computers and the internet, copies are exact, and they are inevitable. Protecting against copies is impossible. The technologies are attacking and destroying protection; they can’t help it. Copy! It’s what they do. The technologies themselves are anarchistic. “Some years ago a copy would be recognized as a copy so it wouldn’t have the same value as the original, but in the digital world the copy is the same as the original.” Protection is almost impossible, but the compensation can happen in new ways. Content producers should be focusing on compensation, not protection. Experiments with advertising, collecting societies, and investors will lead to new models for compensating artists for their work, long after everyone realizes that DRM is futile.

A number of questions from the audience centered around protecting creators from pirates, and it was very frustrating, both for me and the panelists. Over and over, the panel pointed out that trying to control copies doesn’t work, and that if people are given convenient ways to buy movies and music legally, many will do so. Big Media has focused so much energy on protection, and hasn’t put nearly enough into developing new strategies that embrace the web, and that’s their problem. Plenty of independent artists have found ways to build a fan base and make a living using the internet, and free copies are part of their business model.


Gilberto Gil is on a big tour at the moment. If you’d like to hear him speak about a variety of subjects, including his life, music, politics, and Creative Commons, Amy Goodman did an hour-long interview with him last week.