Date: Thu, 27 Apr 2006 17:32:01 -0400
Reply-To: John Hagen <John.Hagen@MAIL.WVU.EDU>
Sender: etd-l Discussion List <ETD-L@LISTSERV.VT.EDU>
From: John Hagen <John.Hagen@MAIL.WVU.EDU>
Subject: Fair Use and Copyright - Any impact on ETD's?
To: ETD-L@LISTSERV.VT.EDU
Dear Colleagues,
Below is an interesting article from the Chronicle of Higher Education
regarding fair use of multimedia materials in electronic theses and
dissertations. This will I'm sure provoke interesting dialogues about
this topic not only on our listserves here, but also at our forthcoming
ETD 2006 Symposium.
At West Virginia University we have had similar discussions about what
constitutes fair use. We have summarized our conclusions and other prime
information on our intellectual property page of the "WVU Guide to the
Preparation of Theses and Dissertations" at
<http://www.libraries.wvu.edu/theses/intel-prop.htm>http://www.libraries.wvu.edu/theses/intel-prop.htm.
There are two works in our ETD collection that come to mind regarding this
topic. One includes a public domain movie trailer from the film "Saving
Private Ryan", where the master's art student wanted to demonstrate his
inspiration for his war theme art. Another example is from the field of
education, where the doctoral student included an abbreviated version of
the song "We Are the World" to summarize her feelings about multicultural
learning processes. Both are good examples of fair use.
We advise our students as best we can as to what constitutes fair use, and
we review all ETD documents submitted for possible intellectual property
violations. One saving grace for us has been the implementation of the
Digital Millennium Copyright Act (DMCA). This legislation basically holds
that the copyright owner must send notification to the offending
individual or institution about alleged copyright violation. The
individual or institution has two weeks to dispute the violation or simply
remove the offending material from the Web. This limits the scope of
liability, so we don't have to fear getting hauled off to jail or being
sued as long as we're giving our best effort to comply.
Many thanks to Sid Morrison for bringing this article to my attention.
Cheers,
- jhh
----------
<http://chronicle.com/>
The Chronicle of Higher Education
<http://chronicle.com/infotech/>
Information Technology
http://chronicle.com/weekly/v52/i34/34a04101.htm
From the issue dated April 28, 2006
Digital Dissertation Dust-Up
Film clips and hyperlinks in graduate theses raise tough copyright and
open-source issues
By PETER MONAGHAN
Virginia A. Kuhn, a doctoral candidate at the University of Wisconsin at
Milwaukee, was having dissertation trouble.
Nothing unusual about that.
But it wasn't that Ms. Kuhn was struggling to finish her thesis. The
trouble was that officials at the institution could not figure out whether
to accept it.
Her thesis is not a printed document. It was born digital, in a multimedia
format full of film clips, hyperlinks to other parts of the work, and
other uses of electronic media.
There was no way to measure the margins to make sure they met the
university's specifications, which are notoriously strict at many
institutions. But that was a minor concern. The biggest issue was
copyright. Citing a snippet of text in a printed thesis is standard
procedure, but including a piece of video or a still picture, which Ms.
Kuhn says is critical to explain her points, can raise the ire of
copyright holders, and sound the alarm among university attorneys.
Although Ms. Kuhn lists detailed citations for all multimedia works in her
thesis, she refused to ask permission to include them, because she insists
that she should be able to cite them in the same way that print sources
have long been cited. She says: "If you ask for permission, you're screwed
because you imply that you legally need it."
Instead, she says, "I'm doing all that's incumbent on me legally to
establish fair use."
The topic of the work, as it happens, is the challenges of adopting new
technologies in teaching and learning.
Even though university officials first approved her dissertation and
tentatively granted her a doctorate in December, they quickly reconsidered
and put a hold on her transcript while they deliberated on whether they
could accept the thesis. Only in late March did the university grant her
degree, after a nerve-racking delay. Ms. Kuhn, now a postdoctoral research
associate at the University of Southern California's School of
Cinema-Television, is among a very few students to compose a dissertation
completely in multimedia format. Many dissertations now include some film,
sound, or other media files. Few, however, appear to have been conceived
as multimedia projects from the start.
Why not just stick to the traditional format?
"As I did my research," says Ms. Kuhn, "I became convinced that I had to
put it in this digital format, because the subject is what happens to
writing, now, in this digital age. I couldn't make the argument without
the digital format."
An Enhanced Book
The form of Ms. Kuhn's dissertation is based on that of a regular book,
but with many nonstandard features. Its online pages are heavy with text,
like a printed book, but when a user moves the cursor over the pages,
hyperlinks pop up, leading to embedded information. And images, when
clicked on, open windows containing more-detailed captions, or a film
clip, or citations. An electronic "sticky note" feature lets users record
comments and reactions for their own later reference.
"I made it look traditional so it wouldn't be completely alienating for a
university user," says Ms. Kuhn.
To produce the electronic work, she used TK3, a software platform designed
by Robert Stein, research director at USC's Institute for the Future of
the Book. An acclaimed figure in new-media circles, Mr. Stein is the
founder of Night Kitchen, a seven-year-old company that develops writing
tools for electronic publishing.
Ms. Kuhn first secured the approval of her dissertation committee, whose
members became enthusiastic after initially hesitating. When her doctorate
was put on hold, committee members went to bat for her.
She assured University of Wisconsin officials she was willing to convert
the document from the TK3 platform to an open-source program that Mr.
Stein and colleagues have developed, called Sophie, which Mr. Stein says
is specifically designed to "be alive for a long time." The Sophie project
is part of his work with the Institute for the Future of the Book, a
collaboration between USC's Annenberg Center for Communication and
Columbia University. The software allows writers and readers to have
conversations within books ? both live "chats" and exchanges through
comments and annotations.
The software does not answer the thorny copyright questions, though.
In her dissertation Ms. Kuhn discusses such subjects as what it means in
the era of digitized media to reproduce images. That and, as she puts it,
"why should you pay copyright fees to cite an image but not a word?"
She argues that citing works, the way one cites texts, should be enough.
Copyright laws, as currently enforced, she says, "limit what can be put
out there," and discriminate against people without a lot of money. "The
rich can afford to pay Hollywood for those clips."
In fact, she does not know how much copyright clearances would cost her
were she to request them. But she is certain that it would be more than a
beginning academic could afford.
While the status of Ms. Kuhn's dissertation remained in limbo, some
graduate-school officials said they were not interested in helping her
break down copyright barriers, even though current copyright laws have
never contemplated cases like hers.
Saving a Copy
Storing the dissertation could also cause problems, says Ewa E. Barczyk,
interim director of the Golda Meir Library at the University of Wisconsin
at Milwaukee.
The University of Wisconsin System is setting up a repository for a
variety of digital documents from the system's campuses. But the library
requires that materials that are placed in the archive be "open-access
compliant," she says, so that anyone can get to them. And, she says, if
Ms. Kuhn's work is included in such a repository, that may create legal
problems because copyright holders may consider the document's
accessibility a breach of their copyrights.
The university's legal department, however, has washed its hands of the
dissertation. "After reviewing the matter, we concluded that the copyright
issues were the concern of the student and publisher, not UWM," says Robin
L. Van Harpen, the campus's senior university legal counsel, in an e-mail
message.
For members of Ms. Kuhn's doctoral committee, the delay in approval of her
work became frustrating. "I don't see what Virginia did as anything less
than a solid, original dissertation," says one of them, Charles I.
Schuster, associate dean of humanities. "It met all the requirements: good
argument, exploratory, full references and sources, innovative."
Even the copyright concerns struck him as misplaced. The concept of "fair
use" should apply, he said, because "this is a dissertation, not a
commercial property."
Legal experts agree. "It seems to be classic fair use," says Kenneth D.
Salomon, a Washington lawyer who often represents colleges in
intellectual-property cases.
Courts determine fair use by considering several questions, says Peter
Jaszi, a professor of law at American University. Is the use educational?
Is it for commercial ends? Does it do measurable harm to a copyright
holder's prospects in the marketplace? Are the clips unnecessarily long or
numerous?
He agrees with Ms. Kuhn that images should be evaluated just as text is.
"Case law makes that absolutely clear," he says.
Of course, he says, universities' lawyers are paid to avoid risk, but they
should beware of doing so at the cost of legitimate educational and
research goals.
He recommends that representatives of various academic groups, including
developers of multimedia works, do what members of the Society for Cinema
and Media Studies have done over the last decade: formulate a document of
best practices relating to fair use, and stake a claim to it.
But even court rulings, say the two lawyers, do not prevent organizations
such as University Microfilms Inc., the publisher and repository of 98
percent of doctoral dissertations completed in the United States, from
imposing their own rules. And, in fact, Milwaukee officials did meet
opposition when they tried to submit Ms. Kuhn's work to that archive.
The company, which is now part of ProQuest Information and Learning, has
been accepting dissertations in CD-ROM format since 1996. Sound, video,
and other nontext files can be uploaded to the company using an online
submissions process. But those files must be in "standard" formats ? and
the TK3 software platform does not qualify.
Nor does Ms. Kuhn's dissertation meet the company's copyright-compliance
requirements. Tina Orozco, a spokesperson for ProQuest, said in an e-mail
message: "While we are seeing many challenges to copyright 'standard
practice' and the scope of 'fair use' is being debated across academia and
the global media, we are obligated to protect our authors to the extent
possible and to comply with the standards set by our agreement with the
Library of Congress."
According to company policy, authors must obtain "written permission to
reproduce copyrighted images, video, graphics, animation, data, and images
of individuals." When copyright questions remain, "publication will be
delayed until those concerns are resolved."
Delayed Resolution
Last month the dean of the university's graduate school, Abbas Ourmazd,
said in an e-mail message that the institution would award Ms. Kuhn's
doctoral degree on the basis of having formulated a "'first pass' solution
to the issues raised" by it. She had "clearly earned" the degree, he said,
so the university would "not wait until all issues are finally resolved."
In addition to problems of readability and dissemination, he said, there
is the obvious one of copyright. He said Ms. Kuhn's work posed challenges
because, for example, it "includes video clips nested inside other
multimedia 'quotes' from other 'authors.'" In such cases, attempts at
clear referencing of material are "not always so simple," he said. The
university is not permitted to help a student resolve such legal issues,
but officials are sympathetic to the difficulty students face when they
try to, he said. Students, he said, are "ill resourced to clarify such
complex legal and commercial issues."
Multimedia dissertations are not new, though they have been few and far
between. One of the first was Christine Boese's 1998 Rensselaer
Polytechnic Institute dissertation about the "Xenaverse," the cyberworld
of fandom for the television show, Xena: Warrior Princess (the work is
stored at <http://www.nutball.com/dissertation/>http://www.nutball
com/dissertation).
Authors of multimedia dissertations have found various ways to deal with
the issues that officials at Milwaukee have been confronting. Way back in
1997, for her dissertation at the University of Virginia, Constanze M.
Witt, now a lecturer in classics at the University of Texas at Austin,
used a multimedia format to support her arguments about the nature of
early Celtic art.
"I actually didn't have many problems with acceptance, as the time was
ripe," she says. The "nonlinearity" of hypertext suited her subject, she
says. Celtic art, she explains, is "curvilinear; it's very hard to follow
what is background and what is foreground. Many images don't have a
beginning and an end; they twist and turn on themselves."
With all that, she says, to use a linear medium would be to impose a
"post-Renaissance, four-square way of thinking," inherited from Roman and
Greek conceptions of art, onto her Celtic material.
Her nonstandard format did pass muster ? although, she says, "the margins
lady was upset because she couldn't wield her ruler."
But permissions did pose problems. Some museums refused to allow Ms. Witt
to reproduce images she wished to include, or allowed her to include only
low-resolution versions. But she skirted those issues and used some images
without permission, she says, by not making the dissertation publicly
available, "although I do have an innocuous Web-site version." On the Web,
she includes low-resolution versions, with permission, of the images she
had wished to run in high-resolution mode.
She has not sought to register her work with University Microfilms.
At her current institution, doctoral candidates are required to submit
their dissertations electronically. But "the dissertations aren't
hypertextual, at all," she says, noting that they must be designed to
print out like book pages and submitted as files converted to Adobe's
Portable Document Format, or PDF.
Mr. Stein, of USC, suspects that the full-fledged advent of the digital
dissertation is still a ways off. "Everybody is looking at everybody else,
and saying, 'You go first,'" he says. "You're going to see a lot of that
for a while."
http://chronicle.com
Section: Information Technology
Volume 52, Issue 34, Page A41
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Sid Morrison
Associate Provost for Information Technology
Chief Information Officer
West Virginia University
(304) 293-4874
<mailto:SCMorrison@mail.wvu.edu>mailto:SCMorrison@mail.wvu.edu
<><><><><><><><><><><><><><><><><>
John H. Hagen
Program Coordinator,
Electronic Institutional Document Repository Programs
WEST VIRGINIA UNIVERSITY LIBRARIES
Acquisitions Department
Wise Library, Room 2510
P.O. Box 6069 / 1549 University Ave.
Morgantown, WV 26506-6069
(304) 293-4040, ext. 4025
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