Fair Use Week 2018: Day Four With Guest Expert Brandon Butler

How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?

by Brandon Butler

I’ve been working a lot with software preservation folks, lately, and trying to think about the kinds of challenges they face due to copyright. I’m hopeful the community can find fair use solutions to at least some of those challenges, but in the meantime I’ve been struck by one unique aspect of software from a copyright perspective: in many ways it’s more like a player piano than a piano roll. Courts have taken this functional aspect of software into account in many contexts, and I’m hopeful that this will make it a good candidate for fair use arguments in the preservation context.

Why am I talking about player pianos? Well, there’s a great case that is taught fairly early in most copyright courses, White-Smith v. Apollo, a 1908 case that deals with the copyright consequences of the then-new player piano technology. (New tech is often a challenge to copyright, which is in many important ways a regime of technology regulation, focused on copying technologies. Every time the law seems to have tamed a given technological paradigm, a shift comes along and unsettles things!) The question for the court was whether the piano rolls that allowed a player piano to play songs were “copies” of protected musical works for purposes of copyright law. If they were, the music publishing companies’ permission would be needed before manufacturing new rolls that encoded songs they control.

As the Supreme Court noted in its opinion, “the question involved in the use of such rolls is one of very considerable importance, involving large property interests, and closely touching the rights of composers and music publishers.” The publishers brought suit.

But the court rejected the publishers’ argument that “Music…is intended for the ear as writing is for the eye, and that it is the intention of the copyright act to prevent the multiplication of every means of reproducing the music of the composer to the ear.” Instead, the court sided with the piano roll companies—a “copy” of a musical work must be “a written or printed record of it in intelligible notation.” The copyright in a musical work is, the court says, just the right to reproduce musical notation in print. Since a piano roll looks like gibberish to the human eye, isn’t really “printed” at all, and only yields music when plugged into a compatible piano, it’s not a copy. The publishers were out of luck.

The court ends its opinion with a common judicial admonishment: if you don’t like our ruling, take it up with congress.

“It may be true that the use of these perforated rolls, in the absence of statutory protection, enables the manufacturers thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properly address themselves to the legislative and not to the judicial branch of the Government.”

The music publishers took this advice to heart, and the results of their legislative advocacy are found in Section 101 of the Copyright Act of 1976, which defines “copies” as “material objects…in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

This seems intuitive to us, now—almost every “copy” we care about in the digital era requires “the aid of a machine” to be rendered perceptible. You can’t stare at a DVD as a way to watch the movie stored on it, nor can you hear the music stored on a hard drive by holding the drive up to your ear. In the analog era, a copy spoke directly to us, as long as we understood the language in which it was written (including musical notation); nowadays, the vast majority of copies are written in a language meant only for computers.

So far, so good. A piano roll is now a “copy” of a musical work, and the music publisher/songwriter should have a say in making, distributing, etc. of such copies. A copy that depends on a machine to be perceptible is still a copy. But what about the machine-the piano or the DVD player? Should copyright also apply to it?

In copyright parlance, the machine that makes a work perceptible should typically be considered a “useful object,” excluded from copyright protection (17 USC § 102). If you would like a legal monopoly on something useful, we have another kind of intellectual property for you—patent law. Design a new piano, get a patent, license others to make and sell it, go on Shark Tank and sell shares to Mark Cuban, etc. Patents can be expensive to get (especially software-related ones), and their term is much shorter than copyright (more than 130 years shorter, in fact), reflecting the public policy favoring wide public access to useful discoveries.

But it’s clear from our interviews with software preservation professionals that from their perspective, lots of software is in the same relationship to digital files as the player piano is to piano rolls. They call this “software dependency”—files created in a certain software environment depend on that software to be perceived. CAD files, word processing documents, spreadsheets, all look like gibberish, or do not reveal their full contents, unless rendered(PDF) with the appropriate software (and hardware, or emulator, etc. etc.).

For archives and special collections containing born-digital documents (which of course more and more of our documents will be over the next several decades), access to our collections will increasingly require access to legacy software. Trying to read a manuscript, an email, a digital sketch, or financial data from the files alone makes about as much sense as holding a piano roll up to your ear. It turns out, software is very useful, even necessary, for preservation and long-term access to digital materials. This is one reason for the sense of urgency in the software preservation community around collective action and shared resources—no archive can hope to assemble and maintain every piece of software they might need to read the diverse file formats in their collections.

I’m hardly the first person to observe that software is useful, and that this makes copyright an awkward fit as a legal regime for regulating its use (See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 344–46 (1970)). Congress recognized this fact in Section 102(b) of the Copyright Act of 1976, which declares that copyright protection does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery” embodied in a protected work. Courts have been sensitive to this fact, as well. They have only granted copyright protection for aspects of software not dictated by function or interoperability (Comput. Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 703– 05 (2d Cir. 1992)), and they’ve applied fair use in cases where copying and reverse engineering of protected software was necessary for interoperability (Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 602–03 (9th Cir. 2000); Sega v. Accolade, 977 F.2d 1510, 1524–27 (9th Cir. 1992)). The policy arguments favoring narrow protection and broader availability of software under fair use in light of its useful character should apply with equal strength to uses of software for archival access and preservation.

Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He is also Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2018: Day Two With Guest Expert Krista Cox

Fair Use and User Generated Content

By Krista Cox

In keeping with tradition, ARL has released a new infographic in celebration of Fair Use/Fair Dealing Week.  While I’m a big fan of all of our past infographics (Fair Use Fundamentals, Fair Use in the Day in the Life of College Student and Fair Use Myths and Facts), here’s what I love about this year’s infographic, Fair Use Promotes the Creation of New Knowledge: it reminds us that fair use isn’t just about someone using existing information, but about relying on it for new creations. Fair use facilitates all types of new knowledge, from news reporting to the creation of innovative technological products, to scholarship.

In the digital environment, in particular, creating new high-quality content and disseminating it widely has become easier.  User-generated content is highly popular and often relies on fair use.  While the Fair Use Promotes the Creation of New Knowledge infographic contains several different examples of the type of new information and culture that fair use enables, I want to highlight some great examples of user-generated content, such as fan fiction, remix songs and mashup videos.

One of my favorite examples is this video above by Movie Remixer on Youtube which mashes up 66 movie dance scenes from 60 different movies with Justin Timberlake’s 2016 song, “Can’t Stop the Feeling.”  The clips are from a very diverse set of movies, ranging from old musicals like Singin’ in the Rain and the King and I, to classics like The Red Shoes and Babes in Arms, to more recent Academy Award Best Picture Winners like Slumdog Millionaire and Silver Linings Playbook, to 1990s comedies like Mrs. Doubtfire and The Mask.  The mashup is highly creative and what I found to be particularly impressive was that it uses so many movies that have nothing to do with dancing and that the user/creator didn’t speed or slow down any of the clips to fit the rhythm of the song.

Here’s another excellent mashup below, entitled “Mean Disney Girls,” which uses dialogue from the 2004 movie Mean Girls and merges it with clips featuring Disney princesses from Cinderella, Sleeping Beauty, The Little Mermaid and others.  In an example of mashups that go viral, this video has more than 13 million views on YouTube.

User generated content is so popular on YouTube that back in 2015, a Google blog post noted that, “More than 400 hours of video are uploaded to YouTube every minute,” including videos relying on fair use.  Because content on the web is often the subject of DMCA takedowns, even if the work is fair use, that same blog post announced:

“YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.  We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns.  With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.”

While the Ninth Circuit has found that copyright holders must consider fair use in issuing takedown notices in Lenz v. Universal Music Corp., also known as the “dancing baby” case, with automated takedown notices being issued by corporate rightholders, this many not always be the case.

This year, during Fair Use/Fair Dealing Week, I’m celebrating all of the great new works we benefit from thanks to fair use.

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.  Prior to joining ARL, Cox was the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She may be reached at krista@arl.org or on Twitter: @ARLpolicy

Fair Use Week 2018: The 5th Anniversary of Fair Use Week!

Welcome to the 5th Annual Fair Use Week Celebration!

This year, Fair Use Week will celebrate its fifth anniversary from Monday, February 26 to Friday, March 2, and will feature infographics, videos, stories, events, scholarship, and more.

Here at Harvard, where we first launched a full week of fair use celebrations in 2014, the Library’s Office for Scholarly Communication is hosting a variety fifth anniversary activities. (For a review of the fair use statute origin story, look no further than our Folsom v. Marsh comic.)

We welcome you to follow our guest blog posts from national and international fair use experts, attend the “Fair Use Gameshow” event at MIT, discover more Fair Use Week comics, and attend the Fifth Anniversary Fair Use Week Symposium, “Tried & True: Fair Use Tales for the Telling.” Thanks to the generosity of the Knight Foundation, this event will bring together a vibrant community of artists, scholars, lawyers, librarians, archivists, and other leading fair use experts in a day of panels, discussions, and demonstrations. We will also talk about and examine our very own Knight News Challenge Prototype grant project, “Can I Fair Use It? Crowdsourcing Fair Use Knowledge.”

As always, our Copyright First Responders will act as official ambassadors to Fair Use Week, donning t-shirts to start conversations around campus and online.

Follow all our Fair Use Week events:

Twitter: @FairUseWeek and @KyleKCourtney and #fairuseweek2018

Blogs: http://blogs.harvard.edu/copyrightosc and http://fairuseweek.org/blog/

Tumblr: Fair Use Week Stories

Stay tuned for more events and updates!

Fair Use Week 2017: Day Five With Guest Expert Sara R. Benson

Make “Non-Consumptive Use” Part of Your Fair Use Vocabulary

by Sara R. Benson

The HathiTrust Digital Library continues to push the boundaries of open access.

In late 2016, the Library’s Research Center made the entire corpus available for non-consumptive use through its Extracted Features dataset.  Using this dataset, researchers can access the non-expressive content of public domain and copyright-protected works for the purpose of performing data analysis. The dataset opens the corpus to computational research techniques such as topic modeling or machine classification while limiting traditional forms of reading by virtue of its abstracted data structure.

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The structured files, presented in JSON format, provide information about the text (the ideas) without revealing its original form (the expression). Although the term “non-consumptive” was never specifically defined in the HathiTrust case,[1] the type of text mining at issue in that case serves as the building block for the transformative use asserted by the HathiTrust and the users of the Extracted Features dataset.

Notably, in Author’s Guild v. HathiTrust, the Second Circuit Court of Appeals stated that the “creation of a full-text searchable database is a quintessentially transformative use.”[2]  The HathiTrust uses the following definition for non-consumptive research:  It is “research in which computational analysis is performed on one or more volumes (textual or image objects) in the HTDL, but not research in which a researcher reads or displays substantial portions of an in-copyright or rights-restricted volume to understand the expressive content presented within that volume.”[3]

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In the case of the Extracted Features dataset, instead of reading or consuming the text, researchers are moving from the extracted content to perform statistical analyses, pull out derived data sets, and look at patterns across words to reach new research conclusions.  This is a decidedly different use then for a work of fiction (say, Harry Potter) which is unequivocally for narrative entertainment.

Here instead, researchers are engaged in another important fair use endeavor— to transform the transmission of and interaction with the work from readable text to minable data in order to better understand connections between literature and historical documents and society.

Thus, non-consumptive use, when defined correctly, could never be construed as anything but a fair use. The concept can provide an important framework for other libraries and data providers who wish to open greater access to datasets without infringement.  It also can embolden researchers to incorporate computational techniques into their scholarship, much of which to date has been limited to pre-twentieth century inquires.

And so, with this brief introduction, I issue a call to all fair use advocates:  please make “non-consumptive use” a part of your fair use vocabulary, promote the use of the HathiTrust Extracted Features Dataset, and continue to promote the fair use rights.

  1. It was, however, defined in the amended settlement agreement, ultimately rejected by the court, in Authors Guild v. Google, available at https://www.authorsguild.org/wp-content/uploads/2014/10/2009-Nov-13-AGvGoogle-Amended-Settlement-Agreement.pdf.
  2. 755 F.3d 87, 97 (2d Cir 2014)
  3. HathiTrust Digital Library, HathiTrust Research Center, Non Consumptive Use Research Policy, available at https://www.hathitrust.org/htrc_ncup

Sara R. Benson is Copyright Librarian & Assistant Professor at the University of Illinois Library

Fair Use Week 2017: Day Four With Guest Expert Dave Hansen

Fair use is for innovation!

by Dave Hansen

betamaxRemember Betamax? I do, but mostly for the fair use case that it precipitated, Sony Corp. v. Universal Studios, Inc. That case was decided by the Supreme Court in 1984. Among other things, it stands for the proposition that fair use allows for copying of copyrighted works for personal, non-transformative purposes, such as in-home recording of television shows to view at a later time. Betamax machines aren’t particularly relevant anymore, but the approach on how courts should apply fair use in light of technological change, as outlined in the case, is as relevant now, as ever.

Fair use and the purpose of copyright

At this point, personal home copying is commonplace; we do it all the time with home DVRs, when we back up our computers and phones, and when we transfer mp3s from an old device to a new one. It’s worth remembering that the legality of this sort of everyday copying, and the legality of the technology that supports it, wasn’t always accepted.

One of the issues that the Betamax case brought to a head was what courts should do when

faced with new technology that makes following the literal terms of the Copyright Act result in legal outcomes that don’t match up with copyright’s underlying purpose. The Betamax court framed the issue this way:

“The immediate effect of our copyright law is to secure a fair return for an `author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. `The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, `lie in the general benefits derived by the public from the labors of authors.’  When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” (citations omitted).

Fair use is one of the tools that gives courts some flexibility in construing the terms of the Copyright Act in light of its basic constitutional purpose. It is an “equitable rule of reason” that gives courts requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has, through the years, facilitated all sorts of technological advancements, from video game development to plagiarism detection software to search engines to image search.

ReDigi and digital resale

One area where we are seeing some interesting emerging innovation is in technology that facilitates secondary markets for digital copies. As a result of so much invention in personal copying and storage devices (and distribution mechanisms to get content to those devices), we now find ourselves in a situation where users have legitimately purchased copies of works for which they never obtained a physical copy. iTunes is the most prominent example, where $0.99 will buy you an mp3 and a variety of other files.

What users can do with those copies is an interesting question. In the past, purchasers of physical copies of books or records could resell, lend, or even destroy the copies they purchased. Congress and the courts recognized that it was desirable for such secondary uses to go unimpeded by copyright, and so crafted a limit on the ability of copyright holders to control downstream distributions of their works after the “first sale” of the copy.

For digital copies, however, the question is a bit more complicated. Users who want to resell or lend their digital copies may be free to “distribute,” but reselling or lending digital copies also, technically, requires a reproduction of the file from one device to the next. The first sale rules, at least as codified in the statute, only address distribution and not reproduction, so technically these resales don’t fall within its scope.

reddigiThis seems like a prime opportunity for fair use to jump in and bridge the gap between the strict terms of the Copyright Act and the underlying purpose of what the Act is trying to achieve. That’s precisely the issue currently being argued on appeal by a company called ReDigi, which has setup its own online market place for reselling your unused iTunes files. ReDigi lost before the lower court, but it is now taking up its case before the Second Circuit Court of Appeals.

As with the Betamax case, the implications for other applications of fair use extend far beyond the immediate uses that ReDigi seeks to make in reselling mp3s. Among other things, it could facilitate library lending of e-books (as argued in this excellent amicus brief from ALA, ACRL, and ARL and Internet Archive), and could relieve all sorts of legal concerns about transferring and providing access to born-digital archival materials.  It’s the kind of case that could also fuel the vision outlined by Internet Archive in its ambitious $100 million, 4 million book digital-lending project.

Whether or not ReDigi wins this particular battle, I think it’s worth celebrating that fair use has provided the flexibility to pursue these sorts of innovations in the past that help fulfill the Copyright Act’s Constitutional purpose of promoting progress.

Dave Hansen is Director of Copyright & Scholarly Communication at Duke University Libraries. He works to help Duke faculty, students, and librarians tackle issues, such as application of fair use, to help enhance the impact of scholarship and library collections. Prior to joining Duke, Dave was a Clinical Assistant Professor and Faculty Research Librarian at the University of North Carolina School of Law.

Fair Use Week 2017: Day Three With Guest Expert Krista Cox

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Debunking Fair Use Myths

By Krista Cox

Many myths perpetuate in the world of copyright.  There are myths about copyright term, copyrightability, and the most important exception to copyright: fair use.  Fair use is, of course, an essential right that allows the use of copyrighted material without permission from the rightholder under certain circumstances.  Without fair use, we might not have the great technological advancements like DVRs and search engines.  Without fair use, there would be no parody, no critique, or mash-ups.  Without fair use, scholarship and education would be severely hampered.  Unfortunately, some myths surrounding fair use serve to severely limit this essential right or might cause confusion about what is actually a fairly predictable doctrine with plenty of existing guidance.

For Fair Use Week 2017, ARL commissioned an infographic on ten fair use myths and facts.  This post focuses on two of those ten myths and facts.

Myth: Fair use is a defense, or minor exception, not a right.

Fact: Fair use is a right that accommodates the First Amendment.

Often, we hear that fair use is a defense to copyright infringement.  Rightholders categorize fair use as merely a defense that excuses copyright infringement.  In reality, however, fair use is a critical right and Congress has recognized its status as a user’s right.  Section 108 of the Copyright Act, which provides for the exceptions for libraries and archives, explicitly references “the right of fair use.”

Fair use must be viewed as a right because of its essential relationship to freedom of speech and expression.  The Supreme Court has acknowledged the important role of fair use as a First Amendment “safeguard.”  In Eldred v. Scott, for example, the Court noted that the idea-expression distinction for copyrightability standards and the fair use right are “generally adequate to address” First Amendment concerns and that these copyright elements serve as “built-in First Amendment accommodations.”  The Court continues by explaining, because “The Copyright Clause and First Amendment were adopted close in time, [t]his proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.  Indeed copyright’s purpose is to promote the creation and publication of free expression.” The “Copyright Clause,” of course, refers to the constitutional purpose of copyright to “promote the progress of science and the useful arts.”  Fair use supports both this purpose and the First Amendment.  In fact, the only way to square the potential restrictions that copyright places on speech with the guaranteed right to freedom of expression, a flexible mechanism must exist to ensure that copyright does not conflict with free speech.

Today, more than ever, the First Amendment is fundamental to our democratic society.  It is critical in ensuring access to information, both in terms of political and economic issues, but also in terms of arts and culture.  Kyle K. Courtney’s Fair Use Week 2017 kickoff video, Fair Use Fights Fascism, discusses the importance of fair use to the First Amendment in today’s political climate.  Beyond the importance of sharing information in the political discourse, as one of my former law professors, Joseph P. Bauer, pointed out in his article Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies,* “The First Amendment may also act as a societal safety valve.  If people feel less free to communicate either orally or in written form, they may resort to less desirable forms of communication, including violent methods.  The freedoms guaranteed by the First Amendment make it less likely that those alternatives will be necessary.”

Because of the role of fair use in protecting the First Amendment, it is correctly viewed as a right.

Myth: Where a specific limitation or exception exists under copyright law, fair use does not apply.

Fact: Fair use is a right that exists in addition to specific exception.

Another fair use myth is that where a specific limitation or exception exists under copyright law, a user cannot rely on the fair use doctrine.  During the Authors Guild v. HathiTrust litigation, the Authors Guild argued that the actions of HathiTrust were impermissible because they went beyond the scope of the Section 108 library exceptions. The Authors Guild claimed that libraries could only perform activities explicitly laid out under Section 108 and that fair use was not relevant to the activities of HathiTrust.  The Second Circuit rejected this argument—giving it no more weight than a footnote in its decision—noting that Section 108(f)(4) unambiguously permits fair use to work in tandem with the specific exception: “Nothing in this section . . . in any way affects the right of fair use as provided by section 107 . . .”

Even beyond the explicit savings clause under Section 108, fair use clearly works in tandem with other specific limitations and exceptions.  The Authors Guild also tried to claim that HathiTrust’s provision of accessible format copies to those with print disabilities violated copyright.  Although Section 121 of the Copyright Act provides for a specific exception for the creation and distribution of accessible works, the Second Circuit turned first to the fair use doctrine and found that this activity is, indeed, a fair use.  As a result, the Second Circuit found “we need not consider” whether the activity was permitted under the specific exception in Section 121.

While specific exceptions provide certainty for particular activities or apply where fair use does not, they do not exclude the applicability of fair use.  Instead, the specific exceptions essentially provide a safe harbor while fair use accommodates not only other uses, but also responds to changes in technology or circumstances, effectively updating the specific exceptions.

In fact, specific exceptions may actually be evidence that Congress recognizes a strong public policy interest in permitting these types of uses and the first fair use factor (the purpose and character of the use) should therefore tilt in favor of the user.  Jonathan Band has written an excellent article, The Impact of Specific Exceptions on Fair Use, making this argument.  The Association of Research Libraries, together with other library organizations and the Internet Archive, also advanced this argument recently in its amicus brief in Capitol Records v. ReDigi.

Fair use is critical to a balanced copyright system and it’s a shame that there are so many myths around this important right.  Hopefully we can continue to celebrate fair use every day—giving it a little bit of extra love this week—and help dispel some of these myths.

You can see all ten fair use myths and facts here and learn more about Fair Use/Fair Dealing Week here.

*In his article, Professor Bauer argues that the idea-expression dichotomy and fair use doctrine ameliorate the conflict between the Copyright Act and the First Amendment, but that they are insufficient.  He advocates for an external mechanism—beyond the internal mechanisms of the idea-expression distinction and fair use—to promote greater protections for the First Amendment.

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.  Prior to joining ARL, Cox was the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She may be reached at krista@arl.org or on Twitter: @ARLpolicy

Fair Use Week 2017: Day Two With Guest Expert Brandon Butler

FUW Logo OSC

Fair Use and Open Access: Two Great Tastes That Taste Great Together

by Brandon Butler

Fair use and open access are two crucial tools that serve the same core purpose: making information maximally available and useful without running afoul of copyright law. A comprehensive strategy for increasing access to knowledge has to bring both tools to bear (at least in countries where fair use or something like it is available).

And yet, it is a tempting rhetorical strategy to deprecate fair use as part of the argument for open access, or for copyright reform generally. Fair use, we are sometimes told, is too weak, too uncertain, too risky, so we must turn to open access/open licensing as the one true path to unlocking knowledge. Lawrence Lessig may be the most common source for the view, articulated in his book Free Culture, that “fair use in America simply means the right to hire a lawyer.”

Fair Use Week itself is evidence that Lessig’s clever put-down has not worn well over time; fair use is more-and-more understood as a reliable First Amendment right that powers the HathiTrustSouth Park, and This Charming Charlie with equal aplomb. Fair use will not generally allow levels of access and use that are as wide open and unambiguous as open access, but fair use is still a crucial—and reliable—part of the legal protections for libraries and our users.

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Once that political misconception is cleared away, however, we still have to address the tricky legal questions that arise when fair use and open access are mixed together in practice. One of the trickiest is whether the author of an article published under an open license like CC-BY may incorporate portions of others’ works into her new CC-licensed work under fair use, as she would if she published in a traditional way? Kevin Smith actually addressed this issue a few years ago, observing that the CC-BY license itself holds the key:

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.

Yes, in other words, of course you can, and the license tells you how. Because a CC license creates certain expectations in users (namely, that they can reuse any or all of the work under the terms of the license), you should be sure to manage those expectations and help users make smart choices.
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Users, by the same token, will need to be familiar with fair use generally in order to determine whether and how the doctrine will continue to shield downstream uses of these “mixed” openly-licensed works.

open_access

So, for the foreseeable future, fair use and open access will be two great tastes that taste great together. Fair use will be a vital right for as long as we want to comment on, critique, and otherwise engage with the vast majority of culture. Open access will be the best way to ensure that the next generation of discoveries ideas have maximum impact. And when new ideas, aesthetics, and insights build (as they so often do) on the works of the past, and are published with an open license, well, that’s the best of both worlds.

 

Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

 

Fair Use Week 2017: Day One With Guest Expert Kenneth Crews

FUW Logo OSCComing to New Terms with Fair Use

by Kenneth D. Crews

One of the virtues of the passage of time is that you get to see a lot of stuff happen and change.  Having spent much of my career on fair use, I have seen many perspectives and takes on this vital copyright doctrine.  It continues to pose challenges and sometimes even offer welcome solutions.  Now is the beginning of Fair Use Week, and I am still coming to terms with the essence of fair use and how it serves different people in different situations in different ways.  From a right, to a defense, to a policy, and to risk implications – perspectives on fair use are shaped by the needs of the community, the legal system, and even personal proclivities.

Right or Privilege?

Some travails about the character of fair use are familiar.  For decades, one debate over the nature of fair use has persisted:  Is fair use a right or a privilege?  My first answer today is the same as it was long ago:  It does not matter what we call it, as long as we are consistent.  My main point of consistency, however, is that we should label all copyright opportunities with the same terminology and give them the same conceptual status.  If fair use is a right, then owners also have rights.  If fair use is a privilege, then ownership is also a privilege.  Frankly, I think “rights” is more accurate.  The overriding concept is that fair use is an integral part of the formula and structure of copyright.  The law is itself a bundle of rights for owners as well as for users.

Right or Affirmative Defense?

One argument against a fair use “right” is its role as an affirmative defense.  What is the position of fair use in the legal system?  Is it really a right that may be asserted by users in a manner that is legally protected, or is it only a defense to raise in response to an infringement lawsuit?  Judicial opinions suggest more strongly than ever that fair use is both.  It is unquestionably a defense in litigation, but fair use is today comfortably recognized as an opportunity for users to be proactive in their asserting of a valid and protectable ability to use a copyrighted work.

The dancing baby video implicitly makes this point.  In Lenz v. Universal Music Corp., a mother who took great delight in her your child dancing to the music of Prince, posted to YouTube a video of her buoyant and happy daughter, with the recording of Let’s Go Crazy playing in the background.  The court did not actually rule that the use of the music was fair use, but did hold that a copyright owner is obliged to give some consideration to the possibility of fair use when sending a takedown notice.  That decision effectively integrated fair use into the full calculation of the expanse of the owner’s rights.

Fair Use as Policy

As fair use assumes a more secure place as a set of public rights, and as part of the definition of a limited scope of authority that belongs to the copyright owner, users and their host institutions – whether nonprofit universities and libraries or commercial entities and major businesses – find today that having a policy on the scope and application of fair use is imperative.  The policy can be practical.  It can guide members of the community through the meaning and application of the law for their common needs.  The policy can also be conceptual.  It can be a vision statement about the importance of the law in support of the mission and goals of the organization.

A good policy can be both and maybe even more.  Our understanding of fair use is a policy decision by itself, and recent litigation involving fair use and electronic reserves at Georgia State University has underscored the importance of having a good policy.  That same litigation also has helped us better see the policy positions we ought to be avoiding.  Through much of the case, as it proceeded through trial and appeal, the publishers bringing the legal action pressed the court to adopt interpretive guidelines from 1976 as the standard that should be applied and enforced as a policy limit at the university.  The judicial rulings on this case firmly rejected that approach and criticized the 1976 guidelines as too rigid and too narrow to be the right standard.

Rise of Risk Analysis

Probably everyone reading this post knows that a determination of fair use is based on an application of the four factors in the statute.  However, I note a strong trend to fold a risk analysis into the decision.

Consider a common scenario:  Professor wants to digitize clips of motion pictures for use in a film analysis course.  The four factors may well point to fair use, especially if the clips are short and they are used in a manner that tightly ties the use to and educational objective.  The professor can become more reticent about fair use, however, when the films are owned by major production companies, or if the resource is used by a large group.

The decision to proceed might also depend on some technical aspects of copyright law, including whether the films are registered with the U.S. Copyright Office, which in turn can shape some infringement risks and the prospect of statutory damages and attorney’s fees.  The initial question may be about fair use, but realistically our answers are often based on much more.

Sometimes Too Much

For some users, fair use is more than they are ready to absorb.  I have worked with colleagues who, in some situations, have been unwilling to take on the challenge and risks of fair use.  The reasons are many.  Sometimes the task is daunting – which is more often true when the project is expansive, the activities are high-profile, and infringement liabilities could escalate quickly.  Sometimes the colleague is simply not ready to take on the risks.  I might make a strong pitch for fair use, but sometimes accepting and applying fair use can be a personal decision about risks, pressures, and disruptions.

These episodes remind us that fair use can also be characterized as a set of responsibilities.  It is a right of use, and the factors call on us to responsibly consider the implications of the use on the market for or value of the original work.  Because fair use also calls on us to exercise a right under the law with legal consequences, we need to be respectful and responsible toward ourselves.  Each of us will engage with fair use differently, and we should act with awareness of the real implications of our decisions for ourselves and others.

International Export

As a final note, we need to appreciate that fair use has also fast become a major American cultural and economic export.  In my blog post from Fair Use Week 2016, I wrote in some detail about the appearance of similar statutes in the copyright law of a short list of countries.  That list continues to expand.

Most recently, a commission of the Australian government has issued a report recommending in strong terms the adoption of an American-style fair use law in Australian copyright.  The report from the Australian Productivity Commission addressed directly the numerous arguments against fair use, and endorsed the role of fair use as a means for infusing the law with flexibility and supporting the evolution of business markets and economic conditions.

The Continuing Evolution of Fair Use

Fair use can be understood in many ways, and it will always be many different things simultaneously.  As we strive to give the law a fresh meaning we are doing exactly what fair use was intended to do:  Serve as a flexible doctrine, adaptable to new and changing needs.  Fair use adapts fundamentally by allowing new uses of new works and by functioning in a context of rapidly changing needs and technologies.  Fair use must also be understood in yet other ways.  In the hands of the public, it is a tool for advancing education and more, but it is also a manifestation of legal risks and policy positions.

Despite the challenges of fair use, it is a welcome addition to the law of a growing list of countries.  Fair use fulfills conceptual and practical needs, and it has become a hallmark of a copyright law that truly serves the purpose of advancing knowledge and creativity.

Kenneth D. Crews is the author of numerous publications on copyright, including Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (4th ed., forthcoming 2017).  He served on the faculty and established copyright policy offices at Columbia University and at Indiana University.  He has given copyright presentations in nearly every U.S. state and in about 30 foreign countries.  Dr. Crews is based in Los Angeles with the firm of Gipson Hoffman & Pancione.

Disclosure: He testified as an expert witness in the mentioned Georgia State University case, and he met with the Australian commission as it considered its recommendations on fair use.

Fair Use Week 2017

Welcome to the 4th Annual Fair Use Week Celebration!

Fair Use Week will celebrate success stories and debate examples through February 24, 2017 via platforms from workshops to Twitter forums. Here at Harvard, where we first launched Fair Use Week in 2014, the Library’s Office for Scholarly Communication is hosting a variety of events, including guest blog posts from national and international fair use experts, a fair use documentary movie premier, a “Fan Fiction & Fair Use” live event, Fair Use Week comics, and more! As always, our Copyright First Responders will act as official ambassadors to Fair Use Week, donning t-shirts to start conversations around campus and online.

Fair Use Week was appropriately born at Harvard in a 2014 campus-only pilot, but its Harvard roots run deep; the fair use statute was actually born out of an 1841 lawsuit (Folsom v. Marsh, now a comic book!) in which one Harvard historian sued another Harvard historian over quotes and abridgements in a biography of George Washington. The publishers (both Harvard alumni, one formerly the Harvard Librarian) took the case to court, where it was heard by Justice Joseph Story, who also happened to be a law professor at—you guessed it—Harvard. Today’s current four-factor statute wasn’t written until 1976, but Story’s core reasoning guided its formation, and it hasn’t changed much over almost two centuries.

Follow all our Fair Use Week events:

Twitter: @FairUseWeek and @KyleKCourtney and #fairuseweek2017

Blogs: http://blogs.harvard.edu/copyrightosc and http://fairuseweek.org/blog/

Tumblr: Fair Use Week Stories

Stay tuned for live events!

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Fair Use Week 2016: Day Five With Guest Expert Matthew Rimmer

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Malcolm Turnbull, Copyright Law Reform, And The Innovation Agenda

by Matthew Rimmer

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Australian Prime Minister the Hon. Malcolm Turnbull

2015 has been another tumultuous year in Australian Politics. There was a dramatic change in the leadership of the ruling conservative coalition between the Liberal Party of Australia and the National Party of Australia. Tony Abbott was replaced as Prime Minister of Australia by Malcolm Turnbull. This change of leadership has been consequential for Australian copyright politics. The transition from Tony Abbott to Malcolm Turnbull has resulted in a re-positioning of the Federal Government’s approach to copyright law and innovation policy.

Under the aggressive leadership of Tony Abbott, the Federal Government took a hard line on copyright enforcement. The film studio Village Roadshow made significant political donations to both the Liberal Party of Australia and the opposition, the Australian Labor Party. The Attorney-General George Brandis pushed through the passage of the Copyright Amendment (Online Infringement) Act 2015 (Cth), with the rather docile assistance of the Shadow Attorney-General Mark Dreyfus. The Internet site-blocking legislation was dubbed the worst piece of legislation by the Electronic Frontier Foundation in 2015. Village Roadshow has already launched a copyright action over the Solar Movie regime in the Federal Court of Australia to test the new regime. Moreover, the Attorney-General George Brandis pushed for a copyright code, governing the relationship between copyright owners, intermediaries, and Internet users. He scorned the recommendations of the Australian Law Reform Commission to introduce into Australia law a broad, open-ended defence of fair use like the United States. Furthermore, the Abbott Government was an enthusiastic cheerleader for the passage of the Trans-Pacific Partnership, with its arsenal of intellectual property enforcement measures.

In contrast to Tony Abbott, who was hostile to science and technology, Australia’s New urbane Prime Minister Malcolm Turnbull has promoted an innovation agenda, and placed emphasis upon entrepreneurship, economic agility, and digital disruption. He has had significant exposure to intellectual property law and policy, as is well documented by Paddy Manning’s new biography, Born to Rule. Turnbull made his name in the ‘Spycatcher’ case, taking on and defeating the United Kingdom Government. As chairman of OzEmail, he was no doubt sensitized to copyright issues. The copyright collecting society APRA threatened an action for copyright infringement against the internet service provider, which was later settled. Turnbull took carriage of reforms of film copyright during the Howard Government. He seemed uncomfortable with a number of policies of the Abbott Government affecting the Internet. Peter Hartcher reported that Malcolm Turnbull battled with Tony Abbott over the proposal for copyright fines for Australian internet users. Turnbull was of the view that Abbott’s heavy-handed copyright proposals were ‘politically explosive.’ Interestingly, Turnbull has also been an outspoken critic of gene patents – a stance that has been reinforced by the recent High Court of Australia ruling against Myriad Genetics Inc.

Malcolm Turnbull has shifted the responsibility for copyright law away from the Attorney-General George Brandis to the new Minister for Communications and the Arts, Senator Mitch Fifield. Just before Christmas, in December 2015, the Ministry for Communications and the Arts released an exposure bill, the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). The proposed legislation has several key components.

  1. The Marrakesh Treaty, Copyright Law and Disability Rights

Maryanne Diamond, ‘An Information Revolution for the Blind’

A number of prominent Australians pushed for the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Graeme Inness, Maryanne Diamond, and Ron McCallum provided eloquent testimony for the need for copyright law reform to address the problem of disability discrimination. The Director-General of the World Intellectual Property Organization Francis Gurry helped shepherd the agreement through the negotiations. The Australian Minister for Foreign Affairs, the Hon. Julie Bishop, has been a prominent supporter of the ratification of the agreement.

Australia has been a proud supporter of the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Australia ratified the agreement in December 2015. The Minister for Foreign Affairs, the Hon. Julie Bishop, emphasized : ‘Australians with vision impairment will have greater access to books and other published materials in accessible formats such as large print, braille or audio following Australia’s ratification of the Marrakesh Treaty’ She stressed that ‘the Treaty is a significant international agreement that will help 285 million people with vision impairment worldwide to access these materials.’ Bishop commented ‘Ratifying this treaty is an important part of the Government’s commitment to supporting Australians with disability. Accessible format materials are essential to ensuring all Australians can engage fully in school, work and our communities.’ She also observed: ‘By improving access to large print, braille and audio materials in the Indo-Pacific, the Marrakesh Treaty will also support economic and social development in our region.’

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to provide access to copyright works by persons with a disability. Section 113E (1) of the bill provides that ‘a fair dealing with copyright material does not infringe copyright in the material if the dealing is for the purpose of one or more persons with a disability having access to copyright material.’ Section 113E (2) considers a number of matters to be taken into account in an assessment of fair dealing. Section 113F deals with the use of copyright material by institutions assisting persons with a disability.

These amendments are certainly a significant improvement over the rather narrow, limited, and defective provisions currently found in Australia’s copyright laws. In its inquiry into Copyright and the Digital Economy, the Australian Law Reform Commission lamented

The digital era creates the potential for vastly improved access to copyright material for people with disability. However current legislative arrangements mean that this potential is not fully realised. The Copyright Act provides for a statutory licence for institutions assisting people with disability. The licence allows these institutions to make accessible versions of copyright works, but its scope of the licence is limited, the administrative requirements are onerous, and it has not facilitated the establishment of an online repository for people with print disability. The exceptions available for individuals—fair dealing, format shifting and the s 200AB ‘special case’ exception—are also limited in their scope. The widespread use of technological protection measures (TPMs) is creating significant barriers to access for people with disability.

The Australian Law Reform Commission recommended that access for people with disability should be addressed by a broad defence of fair use. The alternative proposal of the Australian Law Reform Commission was the introduction of a defence of fair dealing for the purpose of access for people with a disability. This fall-back option has been the one adopted and embraced by the Federal Government.

 

  1. Cultural Preservation

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) also proposes reforms in respect of copyright exceptions for public libraries, parliamentary libraries, and public archives.

Section 113H of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) provides that an authorised officer of a library or an archives does not infringe copyright by using material for the purpose of preserving the collection comprising the library or archives. This measure is subject to further procedural qualifications.

This reform is designed to address the rather clumsy way that Australian copyright law deals with cultural preservation. The moral rights regime has a clearcut exception for preservation. However, the system of economic rights has not dealt with the issue very clearly thus far.

There remain larger issues in respect of reforming copyright law for libraries, archives, galleries, museums, and other cultural institutions. In his book, BiblioTech: Why Libraries Matter More Than Ever in the Age of Google, John Palfrey reflects that ‘the law of copyright has become a hindrance when it comes to building strong libraries in a digital era.’ He observes that ‘librarians have been at the forefront of efforts to update the law to support their good works into the future.’ Palfrey concludes: ‘Without changes to current law and policy, librarians will have a terribly hard time accomplishing their public-spirited mission in support of people living in a democracy.’

 

  1. Cooking for Copyright

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Cooking for Copyright at the QUT Library

In Australian, there has been much concern about the indefinite duration of copyright protection for unpublished works.

In response, Australian librarians held a Cooking for Copyright protest in 2015. Baking Bad, the librarians shared recipes of unpublished works on social media, and engaged in cooking festivals with the illicit recipes. The event was a runaway success, with massive media coverage of the issue, and wide popular support.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to address the issue in respect of term of protection. The Department of Communications and the Arts emphasize: ‘The proposed amendments seek to harmonise the copyright term for published and unpublished works by creating a new general protection period of life plus 70 years that does not differentiate between published and unpublished works.’ The legislation proposes that the general term of protection would apply to works made before 1st January 2018 that remain unpublished at that date.

The amendments also propose to deal with the situation of unknown authors, and Crown copyright.

 

  1. Safe Harbours

Since the passage of the Copyright Amendment (Digital Agenda) Act 2000 (Cth), Australia’s ‘safe habour’ regime has been limited to traditional service providers, such as telecommunications networks and internet service providers.

For many years, Google and other information technology companies have been lobbying successive Federal Governments for a more expansive definition of service providers. Such companies have been fearful of being exposed to copyright infringement lawsuits in Australia, without the protection of a ‘safe harbour’ regime. Copyright owners, though, have fought against an expansion of the ‘safe harbour’ regime.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) proposes to expand the current ‘safe harbour’ provisions in the Australian copyright legislation to include a broader range of entities.

  1. Parallel Importation

The Prime Minister Malcolm Turnbull and the Treasurer Scott Morrison have mooted the repeal of parallel importation restrictions in respect of books.

The parallel importation restrictions have been widely criticised by the High Court of Australia, the Australian Competition and Consumer Commission, the Productivity Commission, and Australian parliamentary investigations into IT Pricing.

There has been great concern that publishers have used parallel importation restrictions to keep book prices high in Australia, and to restrict foreign competition.

Rather shrilly, publishers and authors have accused the Turnbull Government of ‘ideological vandalism’.

However, looking at the text of the provisions, the parallel importation restrictions do not serve any direct purpose of protecting local cultural content.

Indeed, under international intellectual property agreements, the Australian Government would not be able to discriminate in favour of local authors and publishers, without breaching the basic principle of ‘national treatment’.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not contain, though, any legislative measures to repeal the parallel importation restrictions in respect of books.

 

  1. Fair Use

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not address the larger question of whether Australia should have a defence of fair use like the United States.

The Turnbull Government should go further and adopt a defence of fair use, as recommended by the Australian Law Reform Commission. The Australian Law Reform Commission observed:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.

A defence of fair use would be an agile, innovative, and disruptive policy option, which would help reinforce the Turnbull Government’s Innovation Agenda.

Professor Kathy Bowrey from the University of New South Wales noted that the policy papers of the Innovation Agenda did not address copyright law. She noted that ‘copyright rules and regulations sit behind all the agendas found in the innovation statement.’ Bowrey insisted: ‘If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions.’ She maintained: ‘Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.’

The failure to address fair use would leave Australian innovators, entrepreneurs, and digital disruptors at a significant disadvantage. Start-ups in Silicon Valley, Boston, and Brooklyn have been able to thrive, with the help of the protection afforded by the United States defence of fair use. By contrast, Australian innovators would be exposed to the threat of actions for copyright infringement, given the narrow and limited operation of the defence of fair dealing.

The problem would be further exacerbated by the possible passage of the Trans-Pacific Partnership. The Trans-Pacific Partnership would provide for stronger, longer copyright protection throughout the Pacific Rim, and empower incumbent copyright industries, rather than start-ups and digital disruptors. As Maira Sutton points out, the Trans-Pacific Partnership poses certain threats and challenges to copyright defences and exceptions – like the defence of fair use.

Conclusion

It is an exciting time to be a copyright lawyer in Australia. The new Prime Minister Malcolm Turnbull has shifted the Conservative Coalition back towards a more centrist position in respect of Australian copyright politics. He has emphasized that copyright law should not only protect the private interests of copyright owners, but it should also promote innovation, competition, and the larger public interest. There have been a number of modest but meaningful copyright law reforms mooted in the new Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). Such measures address longstanding problems in respect of copyright law and disability rights; cultural preservation; the copyright duration of unpublished; and safe harbours. The proposals are still provisional and contingent. It remains to be seen whether this bill will pass before the next Australian election. Turnbull and his Treasurer Scott Morrison have also considered the repeal of anti-competitive parallel importation restrictions. There is a need for the new Turnbull Government to address the Australian Law Reform Commission’s outstanding proposals in respect of copyright exceptions and the digital economy. A defence of fair use would be of particular help and assistance for Australia’s innovators, entrepreneurs, and digital disruptors. The future balance and equilibrium of Australia’s copyright laws will also be affected by the potential passage of the Trans-Pacific Partnership, with its expansive Intellectual Property Chapter.

rimmer2Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law in the Queensland University of Technology (QUT). He is a leader of the QUT Intellectual Property and Innovation Law research program, and a member of the QUT Digital Media Research Centre (QUT DMRC), the QUT Australian Centre for Health Law Research (QUT ACHLR), and the QUT International Law and Global Governance Research Program (QUT IL GG). Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, and Indigenous Intellectual Property. He is currently working on research on intellectual property, the creative industries, and 3D printing; intellectual property and public health; and intellectual property and trade, looking at the Trans-Pacific Partnership, the Trans-Atlantic Trade and Investment Partnership, and the Trade in Services Agreement. His work is archived at SSRN Abstracts and Bepress Selected Works.