Tag Archives: open access

New Fronts in the Copyfight: new research series in the OA journal DSCN

I’m pleased to announce the launch of New Fronts in the Copyfight: Multidisciplinary Directions in Critical Copyright Studies, a peer-reviewed series of research articles on intellectual property and the digital milieu, which I am guest-editing for Canada’s open-access, digital humanities journal, Digital Studies/Le Champ Numérique (DSCN).

The series opens with an introduction, “Copyright concerns all academics,” that argues for greater knowledge of copyright and intellectual property among Canadian academics.

The first two articles in the series are now available:

1) “Pornographers and Pirates: Intellectual Property and Netporn” by SSHRC-winning Brock MA student Sarah Mann.

“As netporn businesses struggle for control over porn distribution and consumption, they facilitate their own survival by generating new sexual, social and economic norms. These norms mediate between the “pirate” culture promised by technology and the culture industry’s interest in legitimising and entrenching intellectual property rights.”

2) “The Rise, Fall, and Rise of ACTA?” by Athabasca U political scientist Jay Smith.

“This paper argues that the spirit of ACTA may live on in a host of other trade agreements currently being negotiated. That is, ACTA, or even more restrictive versions of it, could be imposed through the back door at least upon weaker states through bilateral agreements with the United States and the European Union.”

Further articles are in the works, and will be announced as they become available. The series hopes to take advantage of DSCN’s open access digital format in order to promote greater critical awareness of copyright and IP issues among academics, students, and the public.

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.

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.

How you know you’ve arrived as a popular culture scholar

When a reader likens your work to porn. (Favourably.)

The work in question is my chapter in the new collection Selves and Subjectivities: Reflections on Canadian Arts and Culture, edited by Manijeh Mannani and Veronica Thompson, out now from AU Press – in purchasable print and free, Open Access e-book formats.

“By examining how writers and performers have conceptualized and negotiated issues of personal identity in their work, the essays collected in Selves and Subjectivities investigate emerging representations of self and other in contemporary Canadian arts and culture.”

“Techno, Frankenstein and copyright”: the open-access edition

I’m pleased to announce that my most-cited article is now openly accessible, courtesy of Cambridge University Press. The article documents the case of Sony’s unlicensed exploitation of Underground Resistance’s acclaimed “Jaguar” track in 1999, demonstrating how “piracy” is the big labels’ own business as usual – and how independents lacking the resources for legal recourse can fight back in other ways.

McCutcheon, Mark A. “Techno, Frankenstein and copyright.” Popular Music 26.2 (2007): 259-80.

This essay argues that the widespread but not widely recognised adaptation of Frankenstein in contemporary dance music problematises the ‘technological’ constitution of modern copyright law as an instrument wielded by corporations to exert increasing control over cultural production. The argument first surveys recent accounts of intellectual property law’s responses to sound recording technologies, then historicises the modern discourse of technology, which subtends such responses, as a fetish of industrial capitalism conditioned by Frankenstein. The increasing ubiquity of cinematic Frankenstein adaptations in the latter two decades of the twentieth century outlines the popular cultural milieu in which Detroit techno developed its futuristic aesthetic, and which provided subsequent dance music producers with samples that contributed to techno’s popularisation. These cultural and economic contexts intersect in an exemplary case study: the copyright infringement dispute in 1999 and 2000 between Detroit’s Underground Resistance (UR) techno label and the transnational majors Sony and BMG.

By the way, if you don’t know “Jaguar,” by Underground Resistance’s Aztec Mystic (a.k.a. DJ Rolando), you’re in for a treat, from your earholes to your shakin’ booty.

What’s Battlestar Galactica got to do with the copyfight?

My article on Battlestar Galactica and Canada-USA tensions over copyright is now available in open access full text at AU’s repository (courtesy of Liverpool UP). At the link you can read the abstract and download the PDF.

McCutcheon, Mark A. “Downloading Doppelgängers: New Media Anxieties and Transnational Ironies in Battlestar Galactica.” Science Fiction Film and Television 2.1 (2009): 1-24.

So what’s Battlestar got to do with copyright? Briefly, the show was produced in the USA, but it was shot in Canada, and it cast Canadian actors as the lead bad guys, who “download” a lot. At press time, Bill C-61 was on the table, but the argument remains relevant to C-32’s expected successor. The recently leaked cables showing the “U.S. swayed Canada on copyright bill” (Geist) add fresh evidence to my claims.

The OA version has neither the layout nor the frame-grab still shots from Battlestar that grace the publisher’s version. There’s an ironic copyright backstory story here. I got the proofs of my article laid out with lots of these still frames — none of which I’d chosen, let alone cleared. I told the editor the images added great illustrative value, but I was concerned about their copyright status — wouldn’t their uncleared use lead to litigation? The editor replied to say that, although “the copyright law around frame-grabbed images” had not yet been tested,

it is the case in the UK that they can be used without obtaining permission (and in the US and Canada, they are covered by fair-use clauses – at least until they too are tested in court). Publishers like [***] Press regularly use images without obtaining permission. We discussed this issue with Liverpool UP before launching the journal and they are prepared to go along with our understanding of the situation; and we do always credit the source of images, even though this is not strictly necessary.

Imagine my delight, then, that this essay on copyright got to appear in print accompanied by illustrative images used legally but without the Hollywood producers’ permission.

It’s only fair that research on copyright law should be openly accessible. It’s a bonus that fair dealing became a principle of this work’s form.

Work Cited

Geist, Michael. “Leaks show U.S. swayed Canada on copyright bill.” Toronto Star 3 Sept. 2011.

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