The Copyright Board painstakingly reviewed copy after copy to ensure that they were all fairly compensated. As had been readily apparent for years, the problem facing Access Copyright is not that copies are not valued, but rather that its licence is not valuable. The Board’s analysis makes it clear that the licence only applies in a tiny number of circumstances given a reasonable reading of fair dealing, insubstantial copying, alternative licensing, and a repertoire that has limits. It is a big loss for Access Copyright that foreshadows an even bigger loss when the education issues are resolved.
So, it looks like Access Copyright was given a pretty thorough review by the Copyright Board of Canada, who basically decided:
Access Copyright doesn’t have actual contracts with the vast majority of content producers, so their license isn’t that powerful.
Most copying is only a page or 2 from a book, at most 10% of a work, which is considered “inconsequential” and doesn’t require licensing.
Fair Dealing is valid. And, the Research clause is valid for non-personal research (when the research benefits others, rather than just the person doing the copying).
I’m not a lawyer, but to my layperson’s eyes, it looks like the post-secondary institutions “opting-out” of the Access Copyright protection racket seems to have been a rather important event in this story. I’m also guessing that Access Copyright isn’t about to roll over and play dead.
So it looks like Pearson sent a DMCA takedown notice to edublogs and their hosting provider. And edublogs’ hosting provider crumbled and took down 1.4 million websites in response.
To be clear, Pearson didn’t take anything down. I’m guessing a legal intern or bot followed an algorithm (search for known strings, run a Whois,
send email…). And the hosting provider, who should have told the legal intern to frack off and take their silly misguided takedown requests with them, decided to turn off websites rather than having to risk paying their own lawyers to fight the request.
This isn’t new. Companies with lawyers on the payroll can afford to bully companies that can’t afford to have lawyers on the payroll. It’s easier for the hosting provider to disable an account than to fight a takedown request. And it’s easier for edublogs to nuke a blog rather than take Pearson to court.
There were four failures in this case:
Pearson, for being copyright douchebags
The hosting provider, for being pussies and caving in rather than protecting their client.
edublogs, for taking the dispute public rather than simply fighting it. They could have done both, but it looks like they caved and went public to try to win moral support.
A legal system that rewards parties that can afford their own legal team while penalizing parties that can’t. If it’s too expensive or risky to fight a silly or unfair takedown request, the system is broken.
Comparing the scope of the copying rights under fair dealing and the Access Copyright licence provides a good sense of why the licence now provides little value. Note that before considering either fair dealing or the Access Copyright licence, educational institutions will first rely on hundreds of site licenses that grant access to millions of articles and other materials or on the millions of open access works that are freely available online. Moreover, in the case of K-12 schools, an Access Copyright backed study found that 88% of books and other printed materials are copied with permission and without the need for a fair dealing analysis or an Access Copyright licence.
He then compares Access Copyright with Fair Dealing over 5 issues relating to using copyrighted works. Access Copyright isn’t really necessary for most of them, and is redundant for many.
The University of Calgary has announced that they will not enter into an Access Copyright model licence but instead will manage copyright compliance and payments in-house.
The Copyright Office in Libraries and Cultural Resources has been expanded and new tracking software, Ares, has been purchased. Information Technologies is working closely with LCR to implement the software, integrate it with Blackboard and link it to other campus systems as required.. Library staff has begun working with the software which will later be rolled out to all members of the University community.
This is great news. The last public statement was that we were looking at tentatively signing up for a short term, to give us time to get our copyright house in order, before withdrawing. I’m glad to see we’ve stepped up to manage our own copyright licensing without paying into the protection racket that Access Copyright had become.
This means that we’ll have to be much more proactive and mindful about how we use copyrighted materials – but that’s a a good thing. Blindly using copyrighted materials because they’re covered by an expensive blanket license isn’t helpful. Let’s figure out how we can legally and morally use copyrighted materials – and more effectively share the resources that we create.
I was just checking my RSS feeds, and saw an article from CBC News.
I thought to myself, “hey! I’ve seen that photo somewhere. wait a minute… I think I took that photo…”
Some quick poking around on my gallery site1, and hey presto. Yup. I shot it back in June, 2009, not far from my house.
Looking at the article on CBC’s site, there doesn’t seem to be any mention of that fact.
I’m guessing someone at CBC did a search on Flickr for “lightning in calgary” or something (back when I had a Flickr account), and found the photo. I’d also guess that it’s used whenever there’s a “lightning” story on the site.
I’m actually fine with CBC using the photo. I don’t even care about getting credit for the photo – please go ahead and continue using the photo if it suits your needs.
This whole credit thing is messy. They (likely) found a photo that was shared under a Creative Commons license, and decided to use it. They goofed on the credit (but, so what), but they were trying to do the right thing. If a news organization struggles with providing credit for a photo, how do we expect everyone else (teachers, students, etc…) to be able to do it? And, does it really matter?
holy crap do I need to do a better job with my photo metadata [↩]
The cumulative effect is clear: schools can rely more heavily on fair dealing for the copying that takes place on campus and in the classroom. This includes copies made by teachers for students for instructional purposes, copies that previously formed a core part of Access Copyright’s claim of the necessity of a license. Indeed, it will be very difficult for educational institutions to justify the Access Copyright license in light of this decision.
I wonder how this will impact online use of copyrighted content. Fair dealing lets us use all kinds of content within the classroom, but gets messy when posting content online. Is the LMS just an extension of the physical classroom? How about a publicly visible site, such as a blog or wiki site used for a course?
The story of the [monkeys that snapped photographs of themselves](http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borrows-photographers-camera.html) made the rounds last week. A photographer’s gear was borrowed by a band of monkeys, and they managed to squeeze off a few photos of themselves. Some of the photos are actually very interesting.
**Photograph on left copyright 2011, an unnamed macaque somewhere in Indonesia. Photograph on right copyright 2011, another unnamed macaque somewhere in Indonesia.**
Here’s where it gets muddy. The photographs were taken by the monkeys, not by the (human) photographer that lugged the gear to the spot. Copyright is granted to the creator of a work – the photographer, not the owner of the camera. So, in this case, if copyright applied it would belong to the individual monkeys that triggered the shutter.
Techdirt [republished the photos](http://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrights-to-news-agency.shtml), and the media company that claims to represent the monkeys asked them to take the photos down. That sentence [couldn’t get much sillier](http://kottke.org/11/07/takedown-notice-for-monkey-self-portrait).
The World Intellectual Property Organization [describes copyright as a human right](http://www.wipo.int/copyright/en/general/about_copyright.html) intended to protect creativity. If WIPO defines it as a *human* right and not as a generic *creator’s* right, then it clearly does not apply to works created by non-humans. So, a photograph taken by an unnamed macaque in the jungles of Indonesia does not fall under protection of the WIPO treaty. It is not a copyrighted work. If anyone could claim to own copyright, it would be a macaque. And that macaque would be unable to defend such a claim in a (human) court, because our treaty defines copyright as a **human** right. Now, I’d actually be interested in seeing the definition of copyright loosened up a little. There are plenty of examples of [non-humans](http://www.calgaryzoo.org/index.php?option=com_content&task=view&id=93&Itemid=248) creating [works of art](http://koko.org/world/art.html). But, that’s not how things are set up at the moment.
This boils down to a large media company overreaching the limits of copyright law, and relying on the accused to back down out of fear of legal costs. This tactic [sounds oddly familiar](http://www.darcynorman.net/2011/06/24/kind-of-blue/). I fucking hate bullies.
Duncan Davidson, a photographer I’ve admired for years (he’s one of the guys behind the [dailyshoot project](http://dailyshoot.com)), wrote up [a fantastic description](http://duncandavidson.com/blog/2011/06/maisel_vs_baio) of the recent [Kind of Bloop](http://kindofbloop.com/)/Blue photograph copyright brouhaha. A photographer, Jay Maisel, takes an iconic photograph of Miles Davis. It’s an amazing photograph. It’s used for the cover of [Davis’ Kind of Blue](https://secure.wikimedia.org/wikipedia/en/wiki/Kind_of_Blue) album. Wonderful stuff.
Pixel-art image by Andy Baio. Photograph by Jay Maisel.
Fast forward a few decades. Musician and artist Andy Baio releases an album of chiptune music, and creates some cover artwork inspired by Maisel’s photograph. He doesn’t directly use the photograph, and doesn’t simply manipulate the photograph. He essentially creates a new pixel-based drawing based on the photograph. It’s a completely new work, painstakingly created in a different medium, inspired by the original. Maisel basically threatens to sue the bejeezus out of Baio, but he’s willing to settle for a comparatively mild ass-raping. Maisel’s a majillionaire photographer, with resources to burn on law-talking-guys. Baio’s just a guy making stuff for fun.
For a description of the process of creating pixel graphics, [see Neven Mrgan’s description](http://mrgan.tumblr.com/post/6840184364/hand-pixelated) of how he created similar works for his iOS game [The Incident](http://bigbucketsoftware.com/theincident/). It’s not just save-as-jpg, open in photoshop, apply pixelization filter, save-as-gif. It’s a definite artistic process of creation. Also, there’s a slippery slope – would Baio have been OK if he’d created a watercolor painting based on Maisel’s photo? A pencil sketch? A cartoon? Where is the line drawn? Is an interpretive dance about the photo OK, where a pixel-based image is not?
Duncan [hits the crux of the issue](http://duncandavidson.com/blog/2011/06/maisel_vs_baio):
> Should Jay have the right to claim the derived image isn’t fair use and ask for a cease and desist? Yes. He’s not, as many are saying, a dick for his opinion. Should Andy have the ability to defend his stance that it is fair use. Of course. Should it take the kind of money that only either corporations or the very rich can easily afford to spend in order to get a judge’s ruling and find out? Definitely not. That’s the real problem here.
The creation of an image that represents the original photograph is almost certainly fair use. But, under the current legal environment, only corporations (and Maisel is a corporation with millions of dollars to support legal actions) can “win.” Baio could have taken it to court and scored a moral and legal victory, but only at the expense of bankrupting himself and his family. That’s insane.
Again, Duncan nails it:
> The shame of it all is that while copyright is largely a conversation between corporations, the situation here pits creative against creative with legal tools that are mismatched for the case at hand. Nobody really wins.
>
> Bonus question: Do the possible penalties in copyright law designed to make it painful enough for publishing companies to comply make sense when applied to individuals in the current world where it’s so easy for anybody to be a publisher?
How does this climate impact the activities of teaching and learning? In an environment where individuals can be sued into oblivion by corporations, essentially bullied into settling before even putting the issue to legal test, what happens to fair use? How will the students in [ds106](http://ds106.us/), which is largely about exploring digital media and creation, deal with the legal issues?
