{"id":564,"date":"2023-02-24T18:29:18","date_gmt":"2023-02-24T18:29:18","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=564"},"modified":"2023-02-24T18:31:36","modified_gmt":"2023-02-24T18:31:36","slug":"fair-use-week-2023-10th-anniversary-day-five-with-guest-expert-will-cross","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2023\/02\/24\/fair-use-week-2023-10th-anniversary-day-five-with-guest-expert-will-cross\/","title":{"rendered":"Fair Use Week 2023 (10th Anniversary): Day Five With Guest Expert Will Cross"},"content":{"rendered":"

Our last post of the glorious celebration\u00a0on the final day of the\u00a010th Anniversary of Fair Use Week<\/a>\u00a0is from copyright\u00a0and open knowledge\u00a0expert Will Cross<\/a>. Will examines the Year of Open Science<\/a>\u00a0through the lens of fair use. \u2013 Kyle K. Courtney<\/em><\/p>\n

Beyond An \u2018Underpants Gnomes\u2019 Theory of Copyright:\u00a0<\/b>Making Fair Use The Missing Piece for the Year of Open Science<\/b><\/h2>\n

by Will Cross<\/p>\n

\"\"<\/p>\n

Fair Use Week is always a reason to celebrate, but I\u2019m feeling especially excited this year due to some big news in copyright and open science – we\u2019re finally saying no to the Gnomes!<\/span><\/p>\n

This statement probably requires some explanation. As you may be aware, the US government has named 2023 the <\/span>Year of Open Science<\/span><\/a> and last week we celebrated the 21st anniversary of the <\/span>Budapest Open Access Initiative<\/span><\/a>. Along with recent recommendations on open science from <\/span>UNESCO<\/span><\/a> and ongoing work with projects like <\/span>Plan S<\/span><\/a> in Europe, the academy has never been more invested in, or more intentional about, opening up the scholarship, data, and educational materials we create.\u00a0<\/span><\/p>\n

Further, this commitment has undergone a fundamental shift from a simple focus on open access to the published scholarly record and towards a values-led commitment to sustainable systems of open knowledge. This shift from access to values is signposted by two memoranda from the White House Office of Science and Technology Policy (OSTP) released almost a decade apart. Where the <\/span>2013 Holdren Memo<\/span><\/a> focused on removing paywalls for published research, the <\/span>2022 Nelson Memo<\/span><\/a> is focused on holistic equity in both the publishing of and access to the record of scholarship. This is a significant change that recognizes that the growth of open access venues (often controlled by the same old for-profit publishers) <\/span>has not led to more ethical modes of production or a more sustainable, inclusive system of scholarly sharing<\/span><\/a>.\u00a0<\/span><\/p>\n

So, what does this all have to do with fair use? The answer is that, as our understanding of what it means to support openness has expanded from access to equity, our copyright literacy has not always kept pace. Copyright has always been a core competency for this work, whether it is called \u201c<\/span>open access<\/span><\/a>,\u201d \u201c<\/span>scholarly communication<\/span><\/a>,\u201d or \u201c<\/span>open science<\/span><\/a>.\u201d In the access-focused era of the 2000s, the <\/span>copyright toolkit for scholarly communication<\/span><\/a> focused on open licenses and rights retention, with an aim to move published scholarship beyond the paywalls controlled by for-profit publishers. Unfortunately, as our commitment to openness has expanded and evolved, the way we talk about copyright has often remained static. We\u2019re trying to meet new, more expansive goals with the same old tools. And that\u2019s where the Gnomes come in.<\/span><\/p>\n

Readers of a certain age may be familiar with an <\/span>old meme<\/span><\/a> focused on a set of satirical characters called the \u201cUnderpants Gnomes\u201d who have an unorthodox get-rich-quick scheme that is notoriously light on details. \u201cStep one: collect underpants . . . Step two: ???? . . . Step three: profit!\u201d This tongue-in-cheek framework of \u201cdo a thing . . . ???? . . . profit\u201d has been a reliably irreverent way to describe any half-baked or ill-considered plan and has been used to satirize everything from <\/span>privacy and antitrust law<\/span><\/a>, to <\/span>Web 3.0 business models<\/span><\/a>, to <\/span>ineffective football game plans<\/span><\/a>.<\/span><\/p>\n

\"\"For too many open scholars the default attitude towards copyright has looked a bit like the Gnomes drew it up: \u201cStep one: apply open license. Step two: ????\u00a0 Step three: global knowledge equity!\u201d As someone who has worked to support open knowledge for many years, I am deeply invested in authors\u2019 rights and open licenses. But it is clear that simply adding a Creative Commons license does not by itself make our work better, more inclusive, or more impactful.\u00a0<\/span><\/p>\n

Without a commitment to <\/span>bibliodiversity<\/span><\/a> and <\/span>equitable authorship<\/span><\/a>, openly-licensed scholarship isn\u2019t inherently more inclusive. Without <\/span>clear information and values-led policy about ownership and use<\/span><\/a>, open data isn\u2019t inherently more ethical. Without <\/span>shared values and a respect for agency<\/span><\/a>, open education is not inherently more equitable. Adding an open license to materials is absolutely necessary but in no way sufficient to meet the goals of the open movement. The <\/span>BOAI recommendations<\/span><\/a> put a fine point on this issue: \u201copen access is not an end in itself, but a means to other ends, above all, to the equity, quality, usability, and sustainability of research.\u201d<\/span><\/p>\n

If we want to use openness to meet those other ends, it is critical to fully engage with copyright. We need to be <\/span>intentional about ownership and authorship<\/span><\/a> so that we can respect the agency of all contributors. We need to take seriously the limitations built into the system so that we <\/span>understand what is subject to copyright and what is free for anyone to use<\/span><\/a>. Most of all, we need to understand and assert copyright exceptions like fair use and fair dealing. At every stage of the scholarly lifecycle those exceptions facilitate a holistic, values-driven approach to open science, from new forms of analysis like <\/span>text and data mining<\/span><\/a> to <\/span>new pedagogies made possible through the Codes of Best Practice<\/span><\/a> and broad sharing through models like <\/span>controlled digital lending<\/span><\/a>.<\/span><\/p>\n

As a US-based scholar writing this post from Amsterdam as part of my <\/span>Fulbright Fellowship<\/span><\/a> on international copyright literacy I have been blown away by the shared mission and values of scholars and librarians in many nations and the tremendous work they are doing in reliance on these exceptions. For open science, fair use can and must be the missing ingredient that fills the gap between \u201copen access\u201d and \u201ca global system of scholarship grounded in equity, quality, usability, and sustainability.\u201d<\/span><\/p>\n

Unfortunately, those Gnomes can be persistent. For many open scholars, the copyright aspects of their work still begin and end with rights retention and a CC license. For some, their hesitancy is grounded in <\/span>copyright anxiety<\/span><\/a>, or a sense that open licenses are an escape hatch that can free them from having to really understand the law. I\u2019ve even had conversations with scholars who suggest that openly-licensing their work somehow <\/span>disqualifies <\/span><\/i>them from relying on fair use or fair dealing! Of course, nothing could be further from the truth.\u00a0<\/span><\/p>\n

Creative Commons licenses <\/span>exist within and rely on the copyright system<\/span><\/a>. <\/span>Scholars much smarter than me<\/span><\/a> have spelled out how fair use and fair dealing permit the inclusion of third-party inserts in most jurisdictions around the world. But even as <\/span>UNESCO\u2019s Recommendations<\/span><\/a> recognize that open science \u201cbuilds upon existing intellectual property systems and fosters an open approach that [relies on] flexibilities that exist in the intellectual property systems,\u201d copyright training remains focused on the simplest version of author\u2019s rights and open licensing (both ironically contract, rather than copyright, issues). Too often we\u2019re talking about open knowledge without any serious discussion about fair use, fair dealing, or really about copyright at all.\u00a0<\/span><\/p>\n

So, as we celebrate Fair Use Week and the Year of Open Science, I hope you will take the opportunity to help make copyright in open science a bit less Gnomic. Open scholarship is not merely compatible with fair use; it requires a clear understanding of copyright, headlined by the ways that fair use and fair dealing can align scholarship with our values. Indeed, significant work is being done to support global shared copyright literacy in this area. Leading scholars like Tanya Aplin and Lionel Bently have <\/span>argued that current treaties mandate a global right to quotation under fair use<\/span><\/a>. The international <\/span>Right to Research project<\/span><\/a> is working to study changes needed in international copyright policy to ensure equity in the production of and access to research. In the EU the <\/span>reCreating Europe project<\/span><\/a> is currently releasing their final working packages.<\/span><\/p>\n

In order to explore this issue and document the exciting new work the Journal of Copyright in Education and Librarianship is developing <\/span>a special issue on Copyright in Systems of Open Knowledge<\/span><\/a>. The <\/span>call for proposals is currently open<\/span><\/a> and, as guest editor, I would love to hear about your own work and help you develop an article. Whether you are creating open scholarship that relies on fair use, developing a training program that supports compliance with Plan S or the OSTP Memo, or advocating for changes in the law to make scholarship more inclusive and equitable, we hope you will share your stories. I know we can do so much better than following the Underpants Gnomes.<\/span><\/p>\n

Will Cross<\/a> is the Director of the Open Knowledge Center & Head of Information Policy at N.C. State University where he guides policy, speaks, and writes on copyright literacy and open knowledge. He recently served as a Hewlett-funded Open Education Fellow and as an instructor for the UNC SILS. As a course designer and presenter Will has developed training materials and workshops across the US and for international audiences from Ontario to Abu Dhabi.\u00a0<\/span><\/i>Will holds a law degree from UNC Chapel Hill, where he also earned his M.S. in Library and Information Science, his M.A. in Media Law & Policy, and his B.A. in Constitutional History and Dramatic Art. Will’s current research focused on the relationship between copyright literacy and open knowledge is supported by grants from the IMLS, the Hewlett Foundation, and LYRASIS. In the 2022-23 academic year he is conducting research on international copyright literacy practices as a Fulbright Schuman Innovation Fellow based in Amsterdam and working with peers across the EU<\/a>.<\/span><\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

Our last post of the glorious celebration\u00a0on the final day of the\u00a010th Anniversary of Fair Use Week\u00a0is from copyright\u00a0and open knowledge\u00a0expert Will Cross. Will examines the Year of Open Science\u00a0through the lens of fair use. \u2013 Kyle K. Courtney Beyond An \u2018Underpants Gnomes\u2019 Theory of Copyright:\u00a0Making Fair Use The Missing Piece for the Year of […]<\/p>\n","protected":false},"author":6259,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1],"tags":[],"class_list":["post-564","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7gxeS-96","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/564","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/users\/6259"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/comments?post=564"}],"version-history":[{"count":5,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/564\/revisions"}],"predecessor-version":[{"id":571,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/564\/revisions\/571"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/media?parent=564"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/categories?post=564"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/tags?post=564"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}