Tag Archives: OA

Frankenstein as a figure of globalization

“Frankenstein as a figure of globalization in Canada’s postcolonial popular culture,” an article I published in Continuum 25.5 (2011), is now available for Open Access, via Athabasca U’s institutional repository. The abstract and downloadable PDF (post-print full text, but not publisher’s version) are available at http://hdl.handle.net/2149/3450.

Applying the popular ‘technological’ interpretation of Frankenstein to the problematic of globalization, these Canadian films [Videodrome, Possible Worlds, The Corporation] criticize the corporate institution, borrowing from Shelley’s story and its popular progeny to comment, with self-reflexive irony, on communication media and their instrumentality to globalization, its hegemonic naturalization, and the ‘imperialist aspirations’ of transnational conglomerates.

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Conflicted about the #pdftribute

The research-sharing tribute to Aaron Swartz makes an eloquent statement, but harbours real risks.

On Friday, January 11, Internet activist and innovator Aaron Swartz committed suicide, at age 26. Swartz was behind RSS, DemandProgress, Reddit, and other initiatives and campaigns for the open Internet and Open Access. The US DOJ was pursuing a criminal case against him which the original plaintiffs, JSTOR and MIT, had earlier decided not to prosecute: in 2009, Swartz had exploited MIT systems to collect almost all of JSTOR’s digital archive, nearly 5 million articles. Swartz’s “guerrilla open access manifesto” explained his action as a radical opening of access to knowledge to the public. He was charged with fraud and theft and was facing millions of dollars in fines and up to a half-century in prison. Amidst the eulogies, obituaries, commentaries that followed this tragic turn, a grassroots academic tribute emerged: #pdftribute – a call for academics to share PDFs of their research openly online, using the twitter hashtag to aggregate them. I’ve watched and taken part in the #pdftribute; it’s part homage, part thanks, part protest. In this latter respect, it reminds me of the #TellVicEverything protest against Canadian Safety minister Vic Toews’ online surveillance bill: a protest that takes shape as oversharing.

But while, as I say, I’ve taken part in the #pdftribute, I must admit I’m also conflicted about it – as a scholar of copyright, sure, but mostly as a scholar per se. What is being protested? Who is being honoured? And what are the risks – both of protesting this way, and of not protesting this way?

What is being protested?

The #pdftribute is, in its conception, an eloquent, even poetically just recognition and extension of Swartz’s legacy. To honour the man “pursued” to his untimely death by “prosecutorial overreach” and “an exceptionally harsh array of charges” for seeking to open public access to knowledge, #pdftribute delegates the continuation of that opening-up work to academics: those whose writings had built the particular archive Swartz was prosecuted for opening. The idea is for academics to publicly share pdf articles of research that normally reside behind university libraries’ or publishers’ own paywalls.

The #pdftribute has, in a matter of mere days, put Open Access (#OA) in the public spotlight and given the movement new momentum. But because Swartz’s work, like the criminal case against him, involved so many different interests and institutions, the tribute risks losing the #OA mission, as participants and commentators in the #pdftribute Twitter feed weigh in on other matters, like DOJ procedure, bullying, copyright, abstractions like “freedom” and “truth,” not to mention meta-commentary like this on the tribute itself (as well as the regular quota of spam, of course). That said, the tribute’s complex, diversified character refracts the complex character in honour of whose diversified, progressive work it unfolds. some of these other matters are relevant and worth keeping sight of in the mix here: matters like copyright, dissent, and depression in particular, all in the context of emergent practices of criminalization: the “criminalization of people with disabilities and [the] criminalization of dissent,” as my RA shrewdly notes.

Even very early on, the #pdftribute demonstrated a disjunction between conception and execution. That is, the initial idea was for “academics” to “put their PDFs online in tribute.” Some responses have interpreted this invitation radically: one participant, acknowledging his work’s already OA, daringly suggested that “for real/risky tribute – post all PDFs you have,” meaning not just those academics have written themselves, but everything they’ve got a PDF copy of – for research, teaching, etc. But the Twitter feed shows that the majority of participants are posting links to or otherwise announcing that their work is already OA. That majority includes Yours Truly, for the moment anyway, for reasons I’ll take up below.

Who is being honoured?

I must admit that one of my first reactions to the #pdftribute – despite my own later participation in it – included a momentary rolling of the eye. An invitation to academics to publicize their research in the context of honouring such a major and widely followed Internet activist as Swartz is, inevitably, asking for an avalanche of smug self-aggrandizement, which in its milder forms we see in declarations of existing OA practice, and in its wilder forms makes grandiose or uncritically entitled-sounding claims for truth, freedom, etc.

So there is a risk, despite the recurring evocation of Swartz’s name in the Twitter feed, that Swartz himself could get lost in all the hustle and bustle? Or that related issues like depression get lost or neglected, in what at times amounts to a torrent of self-satisfied armchair slacktivism? (From which I’m not excluding myself.) Among the more extensive and reflective statements that keep Swartz and his work front and centre is Cory Doctorow’s moving and frank eulogy, which balances discussion of his radical, risky work and his personal difficulties, and which foregrounds copyright as the context for making sense of the former. Which brings me to ask:

What are the risks of participating?

As a critical scholar of copyright – but by no means a legal expert – I see a huge risk for academics here, individually and as a class. Publicly sharing publications that aren’t just copyright-protected but also – and more to the point – paywall- or password-protected incurs the real and all-too-present risk of litigation for infringement, or of counseling or being accomplice to infringement. One recent and troubling tweet I read this morning mentioned a professor suggesting that an undergrad class could “liberate” some JSTOR documents. To be frank, I don’t think that’s okay: I have since learned that this comment was made in jest. (Twitter is great for killing context and nuance, no?) Still, few enough professional academics – like the general public – have enough of a grasp on copyright to basics to make an informed decision for themselves whether to post or not – never mind suggesting (maybe even in jest) that students infringe university conduct codes and copyright law. For instance, while recent Canadian Supreme Court decisions and legislation have arguably brought Canadian copyright law’s provisions for “fair deling” much closer to US law’s provisions for “fair use,” there are significant differences in legislative language and in jurisprudence that may provide American participants here with safeguards and protections that cannot be extended to Canadian participants.

The #pdftribute enables the sharing of protected documents on the tacit premise that doing so is not just technically easy and but ethically straightforward. The ease of posting protected work here derives from the illusion of community that the tribute makes such acts appear to belong to. But herein lies the risk: a Twitter feed does not a community make. There is little solidarity and less security in leveraging such an ambivalent social medium for mass copyright infringement. The #pdftribute is not a community – what it is is a massive and growing papertrail. The current political-economic climate of copyright is leading publishers’ intermediaries and some publishers themselves, to act and react in highly unpredictable ways, as Canadian academia has seen over the last two years in the example of Access Copyright. So, when it comes to a bustling and openly aggregated action like #pdftribute, I can only assume that some copyright troll out there – or a horde of such trolls – is already taking names and starting to churn out reams of cease and desist notices, or maybe even gearing up for a class action on publishers’ behalf. As copyright scholar Paul K. Saint-Amour cautions:

you can seldom criticize the law by breaking it and yet expect the law to forgive your infraction as criticism. (19-20)

In addition, my RA suggests shrewdly that this infringement risk “doesn’t seem warranted by the entire lack of benefit it’d likely produce, especially when are options like organizing colleagues or teaching students to publish OA.” That is, the #pdftribute makes an eloquent statement, but to what extent does this mass sharing actually mobilize knowledge for the public, or communicate knowledge to the public, relative to that effected in the more concerted organizing and teaching of Open Access?

A related risk might be that of harm to the relationship between academic authors and academic publishers, a relationship that is already tense at best and openly hostile at worst, a spectrum seen in the Elsevier boycott, in Canada’s “quintet” of cases between public sectors and royalty-collecting societies, in the Hathi Trust case, and so on. In the context of this fraught, changing, and contested territory of academic capital, the #pdftribute is adding fuel to the fire. By polarizing scholars against publishers, the #pdftribute risks tarring all publishers with one broad brush, when even a cursory browse of the Sherpa-RoMEO database and the Directory of Open-Access Journals soon reveals that there is a vast spectrum of positions for publishers to occupy on the issue of Open Access, and that for all the “knowledge cartels” and monopolies out there, there are many other publishers who are deeply committed to Open Access.
Let me be clear that I offer these reflections not at all as a defence or justificaiton of the status quo in academic publishing. I support and pursue Open Access publishing. But I am concerned about the cultural-economic consequences of the shape and direction taken by the #pdftribute, and moreso about its potentially serious legal implications for academics from tenured professors to undergrad students.

What about the risks of not participating?

In closing, I’ll briefly consider the flipside: the risks of not taking part in the #pdftribute. As a critical scholar of copyright I do feel morally obliged to participate, a feeling based on extensive reading in the history and transformation of copyright law and an understanding of its constraints on innovation and growth in culture and knowledge. I imagine other critical scholars of copyright, Open Access, OER, social justice, censorship, and/or academic freedom may feel similarly obliged, and perhaps rightly so. Would declining to take part in the #pdftribute amount to remaining complicit with extant and emerging threats to academic freedom and freedom of expression more generally? Could declining to take part mean the individual scholar or the whole profession misses an opportunity to affirm or even expand the principle of academic freedom? Or to transform the culture of knowledge communication and mobilization?

I don’t have answers to these speculative questions. What I do have is a profound uncertainty that the specific concrete character of the #pdftribute will in the long run represent an unequivocally positive gain for academic research and those who produce it. I offer these reflections and questions as an invitation to dialogue that can address and advance the interests of the Open Access movement, of scholars (both professional and student), and of academic publishers alike.

Works Cited

Doctorow, Cory. “RIP, Aaron Swartz.” BoingBoing 12 Jan. 2013.
Jauregui, Andres. “Academics tweet tribute to Aaron Swartz.” Huffington Post 13 Jan. 2013.
Kopstein, Joshua. “Aaron Swartz’s family releases statement, blames overreaching prosecutors for his untimely death.” The Verge 12 Jan. 2013.
McCutcheon, Mark A. #pdftribute tweets. 13-14 Jan. 2013.
Musli, Steven. “Researchers honor Swartz’s memory with PDF protest.” C|Net 13 Jan. 2013.
Payton, Laura. “‘Tell Vic Everything’ tweets protest online surveillance.” CBC 16 Feb. 2012
#pdftribute. N.d.
Richman, Jessica. “Tweet at all of the academics you know to put their PDFs online in tribute to @aaronsw. Use the hashtag #pdftribute.” Tweet 7:55 pm MT 12 Jan. 2013.
Saint-Amour, Paul K. The Copywrights: Intellectual Property and the Literary Imagination. Ithaca: Cornell UP, 2003.
Sample, Mark. “You want to challenge the knowledge cartels, don’t just make your research open, make your research about power. #pdftribute.” Tweet 9:25 am MT 13 Jan. 2013.
“World Peace.” “Had Aaron Swartz not been born, our Internet would be censored, truth would be an unknown word. RIP Aaron. The bullies will lose #pdftribute.” Tweet 9:56 am MT 14 Jan. 2013.

Uploading to Youtube: “derivative work” or “public display”?

Browsing the OER Commons for course content, I found some introductory videos, in Quicktime format, about the Harlem Renaissance, licensable for educational use.

Experimentally, I uploaded one to the Landing (AU’s social network), to see if it would play in that network’s default media player (Flowplayer). It wouldn’t. A subsequent Landing discussion about the tech trouble has led me to consider Youtube as a technical workaround: if the Quicktime video won’t play in the Landing, a Youtube version of it will.

But anything involving Youtube and third-party content involves legal as well as technical questions. The question here is whether uploading to Youtube a video used under Creative Commons-type  licensing (specifically, a Teachersdomain.org “Download and Share” license) is okay or not.

The license wording seems ambiguous on the question of Youtube uploading, and in need of interpretation. On one hand, the license expressly forbids “derivative works”: you may not make “a translation, musical arrangement, dramatization, fictionalization, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted.” Uploading this video to Youtube means transforming — or, arguably, translating — the work from Quicktime format to flash-video format. However, the vocabulary and context of the license language here seems to suggest not technical but creative transformation.

So on the other hand, provided the use is for educational purposes only, the license does allow you to “distribute, publicly display, publicly perform (digitally or otherwise) the Work (as long as it is properly acknowledged and attributed).” This language seems less ambiguous: it does permit public, digital display. That seems to speak to what Youtube is about.

I’m not a legal expert, so I’m inclined to err on the side of caution here. But given how new Creative Commons-type licensing is, and how clear and robust fair use is (the content is USA-made), I find it an interesting case to consider on the matter of educational-use repurposing.

Cross-blogged from the AU Landing

IP and OA: price and access in academic publishing

Having just signed a copyright agreement with Taylor & Francis (one of the Anglophone world’s biggest academic publishers), I was pleased to see some provisions for noncommercial and educational sharing. I wouldn’t call them optimal provisions, but better than some — so they’re good to see in such a big publishing conglomerate.

It’s always critically important to read an academic publishing copyright agreement, even in cases where there’s zero remuneration (which is, for articles, quite a lot of them, in my experience). What’s especially important to scrutinize is the agreement’s provision for open access. Fugitive philosopher Tobias van Veen found out the hard way that one publisher’s failure to hold up its end of a contractual agreement to perpetual accessibility didn’t prevent it from sending a cease & desist on discovering he’d taken it upon himself to ensure access, afer the journal in which his work was published had been unaccountably disappeared. (Undaunted, he has since counter-filed against the publisher.)

If the agreement doesn’t seem clear enough, refer to the publisher’s listing in the SHERPA/RoMEO database, which describes the open access (OA) policies of most academic publishers today, big or small. This is a very useful database: it uses a colour-coding system to clearly indicate how free an academic author may or may not be to make one’s research publicly accessible in an institutional repository like AU Space. The open access to research that such repositories afford is, itself, important as academic culture increasingly prioritizes public outreach, accountability, and “knowledge mobilization.” For individual researchers, open access represents an opportunity to reach a potentially much wider audience than individual or institutional subscribers. It occurs to me that greater awareness of OA and IP among academic authors could eventually affect how journals are ranked — not just according to a traditional ideal of specialist prestige, but perhaps also according to an emerging ideal of public service.

Open access is far from being evenly or widely adopted among publishers, to be sure. Many academic publishers not only charge subscription fees for institutions to catalogue journals, but also charge purchase fees for individual articles. And now, as open access gains momentum, some publishers are now “offering” to provide open access for an article — if the author pays them a premium to do so.

What’s with scholarly journal economics: most pay $0 to publish article; charge $30 to buy it; & now, with Open Access, want authors to pay?

To take stock of my own publication record in the context of IP and OA. Counting the article for which I’ve just assigned copyright, I’m looking at thirteen refereed articles. Three are in OA journals (of otherwise uncertain rank): Socialist Studies, Borrowers & Lenders, and Post-Identity. Two for Canadian Theatre Review paid actual money — and both are publicly accessible (one via an individual arrangement; the other, as I’ve just discovered, via the publisher, as promotional content).

As for the accessibility of publishers I’ve printed works with: Cambridge UP and Rodopi rank with SHERPA/RoMEO as “green” publishers (most accommodating of OA); U of Toronto P and Taylor & Francis as “yellow” (somewhat accommodating); and Liverpool UP as “white” (less accommodating). Of the publishers not listed in SHERPA/RoMEO: two (U of Texas P and West Chester U) offer institutionally subscribed electronic full-text access and print article purchase ($15 USD for a single article from Texas; $20 for a journal issue from West Chester); and, lastly, one independent publisher (at the U of San Diego) offers only institutionally or individually subscribed print access, which seems positively medieval (I should write to them to request OA release for that essay).

Some of the bigger publishers also offer purchase “options” for non-subscribers or readers without access to university libraries: my U of Toronto Quarterly article sells for $13 USD from U of Toronto P; my Popular Music article, for $30 USD from Cambridge; and my Science Fiction Film & TV article, for $35 USD from Liverpool.

Don’t mistake this post for solicitation or advertisement. I’m not expecting any royalties on these — and actually, I wonder who would spring for them? (I also wonder where the money goes.) I should also say that I’m not especially concerned to get paid by publishers for research articles. It’s a nice bonus when it happens, but writing research is part of my full-time job description already. And the terms on which many publishers provide personal and educational exemptions for contributors and repositories are adequate and fair. I certainly don’t intend to stop publishing with academic presses (if they’ll have me, after this post). I’m mostly concerned, here, about these variable costs and means of public access to refereed research. And the initiative by some publishers to charge authors a premium for rendering their own work openly accessible is a highly questionable practice (it smacks ever so slightly of vanity publishing). So when you read the fine print of a copyright agreement, do so as though it’s under a microscope, or facing a hot bright interrogation lamp.

Cross-blogged from the AU Landing

Canadians have until Jan. 31 to comment on copyright bill

As Michael Geist says in his blog post today, we Canadians have until the end of this month to send comments on the new copyright bill, Bill C32, to the legislative committee now responsible for it. I’m not sure it’s exactly the “Canadian DMCA” that Cory Doctorow describes it as (especially since the DMCA itself is now more flexible on fair use and digital locks than our expected bill), but a copyright bill has no business protecting digital locks. IMHO.
For the record, here’s the letter I’ve just sent. (To send your own, consider these sources and strategies.)

Dear Bill C32 legislative committee,

There are solid gains for fair dealing in Bill C-32, but the bill protects digital locks more strictly than current US copyright law or even ACTA, now — and this protection trumps the bill’s otherwise substantial gains in fair dealing for Canadian consumers, educators, and businesses. Furthermore, digital locks — TPMs, DRM, etc. — are not intellectual property and should not be covered by IP legislation.

Bill C32 should provide protection for circumventing digital locks when undertaken for lawful purposes. As has been widely noted, this provision would still let Canada meet its obligations to international copyright agreements like WIPO and ACTA.

Thank you for fielding my comments on Bill C32.

Objection to Access Copyright’s 1300% student tariff increase

[If you want to object, you’ve got until Wednesday. See Howard Knopf’s blog, or Michael Geist’s, for details.]

Dear Mr McDougall [gilles.mcdougall@cb-cda.gc.ca],

I am writing, as a university professor, to object to Access Copyright’s proposed Post-Secondary Educational Institution Tariff 2011-13.

AC’s sought-for fees are exorbitant and excessive; they will unfairly burden public education budgets; they will gravely chill Canadian research and teaching; and they seek to arrogate licensing authority over a set of rights and a repertoire (of digital content and everyday communication practices) to an organization, AC, that does not own either these rights or this repertoire (some of which are protected under fair dealing provisions, as decisions like that in the 14 May 2010 SOCAN “previews” case continue to uphold).

For a distance-education institution like Athabasca University, the fees and restrictions (as well as the consequently onerous record-keeping) being proposed by AC will acutely compromise our ability to teach and research effectively, and to fulfil our mandate of removing barriers to access to postsecondary education.

Thank you for fielding and registering this objection.

with best regards,

– Dr. Mark A. McCutcheon
Assistant Professor
Centre for Language & Literature
Centre for Integrated Studies
Athabasca University

Sent: 4:54 pm, 9 Aug. 2010

References:
The SOCAN “Previews” case
IP lawyer (and AC member!) Howard Knopf: Access Copyright’s excessive $45 per university student proposed tariff – August 11, 2010 deadline
IP & e-commerce prof Michael Geist: “Access Copyright’s 1300% Tariff Increase – Deadline to Object is August 11, 2010”
TechDirt: “Access Copyright Wants $45 From Every University Student For Copying & Even Linking To Copyright Works”

Fix Bill C32: take 15 min. to read up, 5 to write

@TonyClement_MP @mpjamesmoore To preserve C32’s fair dealing gains, protect circumventing DRM when for lawful uses #fixC32

Speakoutoncopyright.ca now includes a concise, Unofficial User’s Guide to the Copyright Modernization Act, a.k.a. Bill C32. It also includes a handy guide for Taking Action.

That guide encourages you not to e-mail a form letter, but to mail your own comments to the cabinet ministers and MPs concerned (the guide helpfully summarizes each party’s approach, too).

What’s interesting in this latest bill is its glimmer of support for fair dealing. There’s a “Youtube” clause to permit noncommercial media remixing as fair dealing; there’s a $5K cap on damages for individual infringement (which is actually a win, given how the RIAA and MPAA have gone after individuals like Jammie Thomas in the US). Maybe Canadians are actually being heard on this issue: isn’t it pretty to think so?1 As Michael Geist told the Congress of Learned Societies in Montreal on Monday, this is a bill to fix, not one to kill. New protections for noncommercial copying and other forms of fair dealing are a good start. But the bill’s strong protection for “digital locks” like DRM would trump fair dealing when it comes to almost any DRM-protected content or hardware (they’ve made an exception for phones). For example, you couldn’t make your newly authorized Youtube video legally if it meant working around a DVD’s DRM to rip a clip. Digital lock provisions would always trump fair dealing provisions.

Yet the best overall fix may turn out to be dead simple.

Protect digital-lock circumvention when it’s done for lawful purposes. According to Geist, what Bill C32 needs most is just a single provision confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes (that is, for private, non-commercial uses). This provision, Geist says, “would allow Canada to implement the World Intellectual Property Organization’s Internet treaties, provide legal protection for digital locks, and preserve the copyright balance.”2

Here are three other points I think worth bringing to the C32 debate. (Any other tweet- or postcard-size points you might make to #fixC32 would be welcome comment on this post.)

Make the fair dealing provisions broader and more flexible. Under Bill C32, they are still restrictive for educators, and they still fall short of US fair use norms (and that’s after over a decade with the DMCA). Given the polarized digital trends in higher education—towards open access on one hand, and device-tethered e-books, on the other—Bill C32’s “blanket provision against all circumvention … will lock down a vast amount of digital material, effectively preventing its use for research, education and innovation and curtailing the user rights of Canadians,” as the Canadian Association of University Teachers states in its response to the bill.

Extend the private copying levy to digital devices. If you want to get radical, support Charlie Angus’ proposal (from his now-dead private member’s bill) for extending the private copying levy already placed on blank storage media to digital devices (like iPods and laptops), which would address the concerns of creator organizations like ACTRA that C32 is insufficiently attentive to creators’ compensation.

Get Canada out of ACTA. No, not ACTRA: “ACTA,” or the Anti-Counterfeiting Trade Agreement, is a global agreement being secretively negotiated by several countries, but led by the US Trade Department and US Big Media lobbies. ACTA isn’t really about trade or counterfeiting, it’s about copyright, and it would effectively impose a punitive DMCA model of copyright enforcement on all participating nations. At least not all nations are participating. But Canada is. And by agreeing to ACTA, Canada would forfeit many of the important gains and compromises already in Bill C32. And even if Bill C32 is amended to permit digital lock-picking when lawful, if that were to be prohibited by ACTA (and all reports show it would be) then any such amendment would be moot. So Canada needs either to insist on provisions for lawful DRM circumvention under ACTA, or walk away from it.

So take a coffee break to read up on what’s at stake, then find another five minutes to send a short letter to the government, lauding what’s likeable in Bill C32, and suggesting how you’d fix it. Keep it short, clear, and hand-written.3

And while you’re at it, maybe tack on a P.S. that Canada should not only get out of ACTA, but also CETA as well

Notes
1. Note to Hemingway’s estate: call off your lawyers. I’m claiming satirical fair dealing.
2. One close reading of C32 argues that “lawful DRM-breaking” may already be protected: “Section 41.1(3) of the revised Act provides that statutory damages are not available to an owner who sues an individual for ‘breaking’ a digital lock when that breaking was done only for private purposes.” But reducing damages for private digital lock-breaking is not the same as prohibiting damages for it, and the numerous research- and teaching-related reasons that would justify circumvention by educational institutions remain criminalized. According to Geist, interpreting C32 like this cultivates a disrespect for copyright (and, I’d add, the law in general), whereas “making a sensible law” (i.e. one with clear personal and pedagogical provisions for lawful DRM circumvention) would build respect for copyright in law and in principle. (It’s worth reiterating that the principle of copyright has never been in question on this blog, only the increasingly exploitative character of its regulation. Thanks to Prof. Geist for making time to correspond on this question.)
3. Anyone remember handwriting? Now there was a DRM-free medium!