I created a new page called Workshops and Presentations to link to some of my recent workshops and presentations in Slideshare. For now there’s just one, about Creative Commons. Another on copyright, author rights, and the NIH mandate is coming soon. I just taught a workshop on Open Access as well, but the OA landscape changes so frequently that it’s already out of date.

I have doubts about the usefulness of these Slideshare presentations, especially since there’s no audio and I tend to keep my slides light on text. I am putting up handouts as well, but the talks themselves are largely improvised, and there’s no script or set of notes to share. It will be interesting to see what if any feedback these get.

When it first came out I read a lot of commentating and criticism about the Kindle as a publishing model, but I hadn’t really paid much attention to the specifics of its interface. So my first discovery was that it’s almost impossible to hold the thing without accidentally pushing buttons. And in fact a lot of the interface decisions made me wonder if Amazon had done any usability testing at all. Still, over the course of the week I did adjust to the Kindle’s quirks, and I found the act of reading on a Kindle to be unexpectedly pleasant.

Ultimately, the thing I found most annoying about using the Kindle had nothing to do with the Kindle itself. It was the format of the free e-books.

Some quick backstory: In order to prevent staff from charging John Grisham’s entire oeuvre to the University credit card, the library’s Kindle is not connected to an account, and you can’t use it to purchase anything. Instead, the lovely people in Desktop Support loaded it with a nice assortment of public domain and Creative Commons-licensed books in a range of genres (all from Many Books), so borrowers could experience using the Kindle for several different kinds of reading. I found that the cook book would be a pain to use, ditto the Complete Grammar of Esperanto (I love an IT department with a sense of humor). Most of what’s on the library’s Kindle is novels, and for novels the Kindle is great. I’ve been reading Down and Out in the Magic Kingdom, Cory Doctorow’s first novel and an early experiment with CC-licensing.

And here’s where I got annoyed. The e-books on our Kindle mostly came from Project Gutenberg, a “volunteer effort to digitize, archive, and distribute cultural works,” according to the Project Gutenberg General FAQ. Every Project Gutenberg e-text includes a very long license header, and the license requires that this header remain intact in every future version of the e-text. Go take a look at the header. It’s really long. On the Kindle, there is no way to skip it. Using a moderately-sized font, you have to click through 15 pages of Gutenberg front matter before you get to the actual book you want to read (yes, I counted). It’s totally annoying.

What’s worse, the Down and Out e-text includes not only the Gutenberg license but also the Creative Commons license. And not just the brief, human readable summary of the license. It includes the entire legal deed, which adds another 15 clicks to the front end of the book. That’s a total of 30 clicks, just to get to the first page of the first chapter. That’s 29 clicks too many.

Here’s the thing: Project Gutenberg has made some major contributions to the body of public domain works available electronically. That’s awesome. The organization is also a big proponent of protecting the public domain and of ensuring free, open access to cultural works. Also awesome. But if your free open content is crappy to use, people who don’t know any better will think that all free open content is crappy to use, and that is not a good message for evangelists of free open content to be sending.

The growing popularity of mobile devices for reading books presents an enormous opportunity to groups like Project Gutenberg. There is a huge new audience of people who just want to spend their commutes reading a little Sherlock Holmes (or Jane Austen or Adam Smith or Shaw) on their Blackberries. These people may never have considered the value of the public domain before, or cared about the origins of their reading material, and they definitely don’t have a clue what ASCII is, but they might be willing to donate a little money if they develop nice feelings about the people who provide their free books. It works for public radio; Ira Glass just asked me for five dollars at the beginning of the free weekly podcast of This American Life. I love Ira, and I love my free weekly podcasts, so I sent him five dollars. Project Gutenberg could pull off something similar, but it would require a much friendlier header.

Instead of 15 clicks worth of front matter, Project Gutenberg should include a very brief intro in all of its e-texts, identifying itself as the producer of this free e-text, and encouraging readers to check out the PG website, donate some money, and read the full license deed at the end of the book. Then stick all the legalese at the back. Nobody reads it anyway, they just click (and click and click) through it.

The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the “yes!” responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill.

Harper believes that if the bill passes it is likely to resemble the larded House version, and that it may get even worse.

After the bill was released, I was taken aback by the opposition of several bloggers to the Notice of Use registry in the House bill. On its face, I think requiring people to register their use of an orphan work is not a bad idea; over time, it would build a body of works that are recognized as orphans, and would make it easier for copyright holders to keep an eye on things in the unlikely event that someone mistakenly (and in good faith) identifies a work as an orphan when it isn’t. What I missed in my first reading of the bill, and what shrewder readers like Georgia Harper spotted, was that a registration requirement was likely to be cumbersome and expensive, and could end up acting as another deterrent to potential users. In other words, the House bill could actually make things worse.

Meanwhile, Kevin Smith takes a more hopeful position, though he also sees the bills as limited at best. He focuses on potential library uses of orphan works, particularly in digitization projects, which are also some of the uses I am most concerned about.

Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.

I’m inclined be optimistic about the possibilities that even a pandering orphan works bill would open up. Some academic libraries, including Stanford, the University of Texas, and the University of Michigan, are already developing tools, processes and workflows for researching the copyright status of digitized materials. That work should provide a good foundation if it turns out that libraries do need to comply with registration requirements or complicated “best practices” guidelines.

For reference, here’s a page that describes all the CC licenses.

Part 1: What does your Creative Commons License say about you?

In his post, Courant writes about what he believes the NonCommercial restriction signifies to others, especially to people in business. He fears that a NonCommercial license marks the person using it as “anti-commerce,” and he is not anti-commerce (he’s an economist, after all) and does not want to be perceived as anti-commerce. This is really interesting. I’ve given some thought to what different CC licenses say about the people using them, but the possibility of appearing anti-commerce hadn’t occured to me.

Some of my opinions about the different licenses have made their way into workshops I’ve taught on the subject, but I’ve never considered these judgments systematically. I decided to give it a shot:

I call the Attribution license the “really generous license.” People who use this license are basically ceding all control over their work, granting blanket permission for anyone to do anything with it, even profit-making things. I assume that Attribution people are financially stable, but I also think of them as a little bit gutsy. I associate BY with people who are very dedicated to the cause of open content.

The Share-Alike (SA) set of licenses are also associated with Free Culturites in my mind, but in a slightly different way. These people care about promoting open content, but they do so in a way that I believe is both idealistic and naive. In my experience, Share-Alike licenses can be very confusing for people not already steeped in Open Source culture, and that limits the ability of those people to use SA-licensed works. For example, I spoke to someone who thought that he couldn’t use an unaltered BY-SA-licensed photograph in a conference presentation unless he licensed the whole presentation BY-SA. He had to sign the copyright over to the conference organizers, and therefore couldn’t apply a CC license, so he thought he couldn’t use the image. Share-Alike only applies to derivative works, but that’s a notoriously hard concept for non-lawyers to understand. As a result, I see SA licensors as people who put the cause of open content above the goal of maximizing future use.

[Leigh Blackall of Otago Polytechnic talks about his take on the limits of Share-Alike in an interesting interview on the Creative Commons blog].

I don’t think much about the No-Derivatives (ND) licenses, mostly because I don’t see them very often. My impression of ND people is that they want to share, and understand the potential power of CC to extend the reach of their work, but they are afraid of losing control. No Derivatives users, especially NonCommercial-No Derivatives users, are Creative Commons dabblers.

And then there’s the Attribution-NonCommercial license, which is the one I use, and it’s my favorite. I sell this license to my classes as a nice balance between sharing your work and protecting your interests. As long as the user is non-commercial - a librarian, a fan, a student - she can do whatever she wants with your work. If the user is planning to make money, she has to ask first. You’re still free to say yes, without compensation even, but you get to decide on a case by case basis.

This formula resonates with the people in my workshops, most of whom are either university faculty or librarians. When they use a NonCommercial license, they’re essentially granting permission to people like themselves: academics, scholars, teachers. People like them, making uses like they might make, are easy to trust. Commercial users, whose motives and methods are different, can feel less trustworthy.

This brings me back to Courant’s concern that profit-making enterprises see NonCommercial license users as anti-commerce, and his implicit suggestion that NC licensors put the cause of anti-commerce above the goal maximizing future use. I realized that in my case, he’s right. I do privilege the teacher, the student, the fan. I see their uses as more valuable, more worthy of my generosity, than the profit-makers’. Is that so wrong?

Part 2: Promoting the progress

Courant’s main reason for dropping the NonCommercial restriction comes from a combination of opinions about economic theory and copyright.

If you believe, as I do, that the purpose of copyright is to “Promote the progress of science and the useful arts”, then it is more important that the work be out in the world being read, and contributing to a larger discourse, than that strangers not be able to make money from it.

I do believe, as he does, that the purpose of copyright is to promote the progress. I love promoting the progress; I do it all the time. I think universities and governments should license everything they do under CC-BY, because maximizing access to scholarly and government works is so very important. But I struggle, as an individual, especially an individual at the bottom of the professional food chain, to feel comfortable offering up my work freely to the profit-makers. I want to contribute to the larger discourse, and I want my works to be read and my photographs to be seen, I just haven’t been ready to give everything away.

But Courant makes a compelling argument:

One maximizes the influence of the work by maximizing potential uses of the work, recognizing that commercial uses have just as much power to promote progress as non-commercial uses…

Maximizing influence sounds good, too. As an individual at the bottom of the professional food chain, I think a lot about maximizing my influence. What’s more, I tell people all the time about how Creative Commons (and Open Access) can help maximize their influence, increase their impact, improve their visibility. It follows that the freer you make a work, the farther it can travel.

When it comes right down to it, the chances that anyone is going to make any money at all from this blog are tiny. My pictures on Flickr are similarly lacking in likely financial value. This exercise is entirely theoretical. However, I am called upon with some regularity to advise people on the choosing of a Creative Commons license, and unpacking my beliefs about the meanings and significances of the different options has been very helpful, for me at least. It will certainly change my standard advice about choosing a license; I used to suggest BY-NC automatically, to everyone. Now I’m more likely to push BY, especially for projects that are meant to serve as resources for a broader community, like wikis or research guides.

Me, I’m sticking with BY-NC for the moment. But watch the sidebar; I might change my mind.

Opponents are already raising hell, but here’s hoping that the bill passes with most of its usefulness intact.

To be clear, I wasn’t party to any confidentiality agreement, but I’m hiding the post anyway because I think the bill is important, and I don’t want anything to stand in the way of its consideration.

Draft copies of a new Orphan Works Act were released by both the House and Senate today. It hasn’t officially been introduced yet, but there are links to PDFs of both versions at the bottom of this post. At this point, I haven’t read had a chance to read either closely, but here are some first impressions, based on a quick skim of the House bill, and an even quicker glance at the Senate bill. All quotations are from the House version. More will follow, after I have time to read both versions more carefully (and read what the experts have to say).

There are some substantial changes from the Orphan Works Act of 2006, at least one of which should please copyright holders concerned that orphan works legislation will erode their ability to control uses of their work, and another that will greatly diminish the usefulness of the act in the near term.

The first is a new requirement that users of an orphan work must register a “notice of use” with the Copyright Office. According to the bill (page 9 of the attached PDF):

Such filings shall include—

‘‘(A) the type of work being used, as listed
in section 102(a) of this title;
‘‘(B) a description of the work;
‘‘(C) a summary of the search conducted
under paragraph (1)(A)(i)(I);
‘‘(D) the owner, author, recognized title,
and other available identifying element of the
work, to the extent the infringer knows such in
formation with a reasonable degree of certainty;
‘‘(E) a certification that the infringer per
formed a qualifying search in good faith under
this subsection to locate the owner of the in
fringed copyright; and
‘‘(F) the name of the infringer and how
the work will be used.”

This will make is much easier for concerned copyright holders to keep an eye on things, because anyone who hopes to make a legitimate, protected use of an orphan work will register that use with the Copyright Office. Furthermore, there is a requirement that users of Orphan Works “include with the use of the infringing work a symbol or other notice of the use of the infringing work, in a manner prescribed by the Register of Copyrights;” (page 5) which means that re-uses of orphan works will be marked and easy to identify.

(As an aside, I was just talking this afternoon with Jack Bernard, my copyright professor from grad school, about a comment on orphan works that he and his colleague Susan Kornfield submitted to the Copyright Office in 2005. Their solution was unique in a couple of ways; one was that they proposed calling resurrected orphan works “fostered works,” and the other was that they suggested the creation of a registry of fostered works that would make it easy for copyright holders to see if their works were being called orphans. Jack said that nobody, in all the discussion of orphan works he had seen, had ever considered their comment, or talked about it, or mentioned it. Not once. I joked that I would blog about it. And now, not five hours later, the newly released draft legislation includes a requirement that looks an awful lot like one of the solutions Jack and Susan suggested back in ‘05. Neat.)

The second is a requirement that the Register of Copyrights will develop a certification process for electronic databases that will “facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code” (page 15). This by itself is great news - we need resources that make it easier to find information about copyrighted works, and the Copyright Office should be leading the way in promoting the development of those resources.

Here’s the downside: While for most works the act will take effect in January of 2009, for pictorial, graphic, and sculptural works, the act will take effect either after the Copyright Office has certified no fewer than two “independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet,” (page 17) or on January 1st, 2013, whichever comes first. January 1st 2013 is not soon. And pictorial and graphic works are some of the most notoriously difficult orphans to track down, as well as some of the most fragile.

Other observations… The new draft has language that explicitly exempts non-profit educational institutions, libraries, and archives from having to pay monetary damages, as long as their use is noncommercial and “primarily educational, religious, or charitable in nature.” There was similar language in the old bill, but it didn’t single out any particular kind of institution; I’m not sure if the new phrasing is better or worse or just different.

And a last note to the angry artists: the following language was in the old version of the bill as well, and it still nullifies all your claims that orphan works legislation will permit people to steal all your unsigned photographs and images:

LACK OF IDENTIFYING INFORMATION.—The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions [for eligibility] under paragraph (1)(A)(i)(I).

In other words, the mere lack of a copyright notice or name attached to the work is not enough for someone to declare a work orphaned.

Here are links to the PDFs of the drafts. My understanding is that Senator Leahy and Senator Hatch plan to introduce the legislation later this week.

House Orphan Works Act of 2008

Senate Orphan Works Act of 2008

[Cross posted at the Copyright Advisory Network blog]

The point is that, as a result of the post’s high Google ranking, I’ve had a number of comments from the previously-mentioned angry illustrators, upset about what they believe orphan works legislation will do to their livelihoods, and I feel compelled to respond.

There is a lot of misinformation about the potential Orphan Works Act being spread by the Illustrators’ Partnership, most of which is embodied in Mark Simon’s recent article, “Mind Your Business: You Will Lose All The Rights to Your Own Art” (the lies begin in the title). Illustrators all over are swallowing these falsehoods whole, and have taken it as their personal mission to make sure no Orphan Works Act never passes. A few people out in the blogosphere have done a nice job of addressing the many specific inaccuracies floating around - Meredith Patterson and kynn both go into great and entertaining detail - and I won’t address them here.

Here, I’m concerned with the assertion, made by Mia in a comment on my last post, that orphan works legislation “is a ludicrous scheme dreamed up by greedy corporations”. It’s not. It’s just not. For the last few years, major champions of orphan works reform have included Lawrence Lessig, Duke’s Center for the Study of the Public Domain, Eric Eldred, and The American Library Association. And don’t forget Register of Copyrights Marybeth Peters. These are individuals and organizations dedicated to serving the public good, to preserving the founding principles of copyright law, and to promoting the Progress of Science and useful Arts. They’re policy wonks and librarians.

Why do wonks and librarians care about orphan works? Because we see every day the terrible impact that ever-extending copyright terms are having on the ability of ordinary people to find, share, and build upon the creative works of the past. Because we are watching unique materials in our collections - fragile books, classic film reels, historic photographs - crumble, with no clear legal protections for those of us would like not just to preserve those materials, but resurrect them and introduce them to a new generation of users and researchers.

I can brush off a lot of the lies about potential orphan works legislation as just poor fact-checking, but when someone lumps me in with “greedy corporations” - the very corporations that got us into this copyright mess - I take it personally. The public benefit that would come from a reasonable orphan works act is real, and it is great. Librarians see it. Policy wonks see it. Many scholars and creators see it, too. Orphan works legislation is not about authorizing giant corporations to steal from starving artists. It’s about opening up a vast store of resources that have been made inaccessible through a series of bad policy decisions and that, in the age of the Internet, have new potential to reach and affect millions of people who never could have found them before. Orphan works reform was dreamed up by wonks and librarians, because we care about the public, we care about progress, and we want to do good.

The latest CC-based business to cross my radar is the travel guide site Schmap. I found out about it when I got a message that one of my Flickr photos had been nominated for inclusion in Schmap’s guide to the Niagara Region. I was glad that they liked my picture, and extra glad to learn about another cool project involving CC-licensed work.

Schmap creates free, printable and downloadable travel guides. As far as I can tell, it’s ad-supported. Like Vidoop, Schmap gets all its photo illustrations from Flickr, and the editors seem to search only for CC-licensed work; if the CC license permits commercial use, they go ahead and use it, and if it doesn’t, they ask for permission. I have no proof, but my guess is that they’ve identified users of CC-licenses as more open to reuse and sharing, regardless of whether or not their chosen licenses permit commercial use.

The agreement that they asked me to sign is the model of a good, creator-friendly agreement.

2. LICENSE GRANT
Subject to the terms and conditions herein, You hereby grant Schmap a worldwide, royalty-free, non-exclusive, perpetual license to include the Photos in the current and/or subsequent releases of Schmap’s destination/local guides.

3. FAIR USE RIGHTS
Nothing in these Terms is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

Non-exclusive! Explicitly encouraging fair use! Awesome!  This is exactly the kind of thing I’d like to see from more scholarly and academic publishers. Hopefully, experiments like Schmap will demonstrate that it’s possible for some businesses to make money without controlling the copyrights in the content it distributes. A non-exclusive license will do.

I’ve been interested in the orphan works problem since my first year of grad school, when I gave a presentation about it in my copyright class. This was right around the last time it looked like we might get an Orphan Works bill, and I remember checking the Copyright Office website every week to make sure I hadn’t missed anything good. Three years later, still nothing. It has been a real lesson for me in the excruciatingly slow pace of lawmaking.

First there was the recognition that orphan works were a problem that was only going to get worse. That happened when? Shortly after the Sonny Bono Let’s Extend Copyright Terms Again Because Almost Infinity Isn’t Long Enough Act in 1998? Earlier? Then Eric Eldred filed his complaint in 1999, and the Eldred v. Ashcroft verdict was finally handed down in 2002. Three years passed before the Copyright Office’s Notice of Inquiry in 2005. Then the Orphan Works Act of 2006 went nowhere. Now it’s 2008, and the Subcommittee on Courts, the Internet, and Intellectual Property held a hearing.

Here’s hoping something comes of it. Photographers and illustrators have been objecting strongly to all orphan works legislation, and I think they have some legitimate concerns about the ease with which their works can be separated from their names, but that doesn’t mean a reasonable orphan works bill wouldn’t have a tremendous public benefit overall. It’s long overdue.

[Update: I’ve written a follow up to this post, here]