Open Access Week 2014 at Virginia Tech

The University Libraries at Virginia Tech is pleased to announce our 2014 Open Access Week schedule! This year we are offering eight events, highlighted by a keynote address from Brian Nosek, a panel discussion on open access by Virginia Tech faculty and graduate students, and a workshop on reproducible research.

Open Access Week 2014

Open Access Week events are open to everyone, and for the first time all events will also be available for NLI credit (look under University Libraries). Here’s more info on our highlighted events:

Brian Nosek
Brian Nosek

A Keynote Address by Brian Nosek, Professor of Psychology at the University of Virginia and co-founder of the Center for Open Science. His talk is titled “Scientific Utopia: Improving the Openness and Reproducibility of Research” and is sponsored by the Department of Psychology, the College of Science, and the University Libraries. (Monday October 20 at 5:30 pm in Pamplin 30, full details here.)

A Panel Discussion on Open Access, featuring faculty and graduate students at Virginia Tech. This is always an engaging event and it’s interesting to hear how folks from different disciplines are involved with open access. (Tuesday October 21 at 5:30 pm in the Library Multipurpose Room, full details here.)

A Workshop on Reproducible Research Practices, led by the Center for Open Science. Bring your laptop and please RSVP for this one. (Thursday October 23 at 3:00 pm in the Library Multipurpose Room, full details here.)

And we have five additional events, including sessions on our Open Access Subvention Fund, using Creative Commons licenses, author rights, and trends in scholarly publishing. See our full schedule for details, and help us spread the word by posting the schedule flyer and keynote address flyer on your office door and/or local bulletin board. Feel free to contact me at if you have any questions. See you then!

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Students: Apply for OpenCon 2014 Scholarships!

Graduate and undergraduate students at Virginia Tech are encouraged to apply for one of two available travel scholarships to OpenCon 2014, the student and early career researcher conference on Open Access, Open Education, and Open Data to be held on November 15-17, 2014 in Washington, DC.

OpenCon 2014

The scholarships cover travel expenses, lodging, and some meals. One scholarship will be awarded to a graduate student, and the other will be awarded to a graduate or undergraduate student. Virginia Tech students must use the following URL to apply by Friday, September 26:

To find out more about the conference, see the conference program and the participant FAQ. This international conference offers an unparalleled opportunity to learn about the growing culture of openness in academia and how to become a participant in it. The travel scholarships are sponsored by the Graduate School and the University Libraries’ Open Access Week committee. For questions, please contact Philip Young,

Winners will be selected on the basis of their answers to the application questions, and announced on October 3. Please spread this opportunity to VT students far and wide, and good luck!

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Open Textbooks Available for Review

OpenStax Textbook Display

The University Libraries invites students and faculty to peruse a collection of open textbooks on display next to the reference desk on the second floor of Newman Library. Traditional textbooks tend to be very expensive, but open textbooks such as these from OpenStax College have several free online formats (the iBooks are $4.99) and are much cheaper in hardback form (the cost of printing, usually $30-$50). Students interested in reducing textbook costs can take pre-printed information from the display to give to their professors. More information is available in the OpenStax College Textbook Display FAQ. Our hard copy display should be around for a few weeks, or you can explore the books on the OpenStax website.

Open textbooks benefit faculty as well because they are offered under an open license (the Creative Commons Attribution, or CC-BY, license), allowing faculty to re-use, remix, and adapt course material to their liking. The textbooks are written and peer reviewed by subject experts (usually faculty, who are listed just inside the front cover) and are already in use at many universities, including Virginia Tech, where the Sociology textbook has been used in the SOC 1004 course. Supplemental materials are also available for faculty- for example, there are slides and a test bank for the Sociology textbook.

There are currently nine textbooks available (shown below), with four available soon (Pre-calculus, Chemistry, U.S. History, and Psychology). OpenStax College, a nonprofit publisher based at Rice University, recently announced that 21 titles will be available by 2017.

OpenStax Textbooks

Open textbooks are just one form of open educational resources (OER), which include openly licensed online simulations, courseware, images, audio, video, tutorials, modular course components and more. Anita Walz, our OER Librarian, organized the textbook display and has created an OER Finding Guide. There will also be a library webpage on OER available soon. If you are a faculty member interested in reviewing one of these (or other) open textbooks, or are looking for other types of OER, please contact Anita at

OpenStax College textbooks are available through Summon by searching for “OpenStax”, and we also offer a guide to finding specific textbooks in the library.

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The TechniCity MOOC: An Interview with Tom Sanchez

Last summer I wrote a brief post about access to scholarship in a MOOC co-taught by Tom Sanchez, Professor in Urban Affairs and Planning, shortly after the course’s initial offering. After TechniCity was offered again this past spring, I thought I would ask Tom more questions about the course.

Tom Sanchez
Tom Sanchez

The interview below took place via e-mail over a few weeks in late July and early August. Other than a couple of typos and linking text, no edits have been made. However, the order of the questions has been changed to make more thematic sense. Thanks to Tom for his patience with my questions.

First, tell us about the course and your goals in co-teaching it.

The course is about how technology is being used to improve cities through capturing and utilizing new sources of social, economic, and environmental information. Ideally this information will lead to better decision-making by individuals and their communities. Jennifer Evans-Cowley (at Ohio State University) and I both taught courses about cities and technology and while discussing online education at a conference, decided to combine efforts and teach a MOOC on the topic. Neither of us had taught a MOOC before, so it was also an experiment with the MOOC platform. Ohio State University is a Coursera member (Virginia Tech is not), so we co-taught the course on Coursera. We knew it would be a lot of work, so we decided to teach it together with the help of two doctoral students and an instructional technologist from Ohio State.

Can you give us some demographics of the course participants, and whether there were any changes in them from the first offering?

The first time we offered the course there were over 21,000 students signed up and the second time we had over 11,000. The locations of students were nearly the same both times with about 4% from Africa, 18% from Asia, 1% from Australia, 33% from Europe, 36% from North America, and 8% from South America. We only collected simple demographics like age, gender, and location. The average student age was 33 years old and most were male (65%). The students were from nearly 100 countries and nearly 60 percent of them living in cities with 500,000 or more people. These characteristics were similar for both course offerings.

How many students completed the course?

Like other MOOCs the participation rate was relatively high, but the completion rates were low. In the first class we had 343 complete the course and about 185 in the second class. Large numbers of students view most of the course videos and other materials as well as engage in online discussion, but assignments and projects tend to reduce the numbers of students actually completing the course.

Do you know if there were any course participants from Virginia Tech?

This past Spring we had students taking the MOOC for credit at Ohio State (about 25) and Virginia Tech (about 12). We created a separate Google+ Community for these students to engage with each other and discuss course topics and projects. The instructors spent more individual time with students taking the class for credit and provided direct comments on projects/assignments.

What support (technical, administrative, or otherwise) did you have here at Virginia Tech for co-teaching the course, and were there any areas where you could have used more support?

I received support from Anne Moore, Gardner Campbell, and Jennifer Sparrow (InnovationSpace). Unfortunately none of them are still at VT. Anne and Gardner provided resources for me to buyout a course to concentrate on developing the MOOC. Jennifer and InnovationSpace provided much needed help with video production. The technical help from Ohio State (Tom Evans) was invaluable because no one at VT was working with Coursera. It would have been impossible otherwise. If you’re going to build a MOOC you’ll need to know about video and I’m not sure if most universities are ready to help large numbers of faculty with this.

What is your sense of the interest from Virginia Tech faculty in teaching a MOOC?

A colleague in UAP, Jocelyn Widmer, has extensive experience teaching online and has expressed interest in MOOCs. Other than that I haven’t heard much discussion.

Has co-teaching the course affected your teaching at Virginia Tech?

The course has changed my outlook on teaching. It was much more work than I anticipated, and I learned quite a bit in the process. I think our course is well-suited to the online format, but may not work for other types of courses. And not all students care for distance learning, online courses in particular. I believe online courses will improve over time as we adapt technologies to different learning styles. The key is learning how to learn, regardless of the platform.

The TechniCity e-book (PDF) is a nice resource to make available. Was it intended mostly for prospective students?

The e-book is a good way for us to show prospective students what the course is about. I think it is also a good way for us to document what we’ve accomplished. Because the course is about rapidly changing technology it will be interesting to build a record of topics and activities. Assembling the e-book is a good way to reflect on course structure.

You have an article in press about the course- does it include the results of the post-course student survey?

Yes, we include summaries of the pre-, mid-, and post-course surveys in the article (forthcoming in the International Journal of E-Planning Research). These were valuable sources of information as we made changes to the course. The post-course surveys help us to gauge interest in particular topics, activities, and overall structure. One of the challenges is that because the course is free, if students don’t like it they can just stop participating with no penalty. We have a survey for those who un-enroll but the response rate isn’t too high. These are the people we’d really like to get more information from to improve the course because those who finish it tend to be the ones who liked it.


Last year we communicated briefly about the difficulty of ensuring that the course materials were openly available to everyone, which can be a problem for peer-reviewed articles in an international environment. What was your experience this time around?

We mainly relied on open and accessible materials available on the web. In our course, many of the case studies and recent research has not been published in peer-reviewed form yet, with the best resources already available for free on the internet. With so much free information available, we have plenty to cover our topics.

Do you think MOOCs have influenced the need for openly available information?

I’m not sure, but so far I haven’t seen any evidence of it. Many of the MOOCs that I’m familiar with are relying on video/lecture, assignments, and discussion, rather than “reading” materials from books, journals, etc. So much is already available online so in many cases there seems to be plenty of options.

Course ownership has been a faculty concern with some MOOCs. Who owns TechniCity?

Jennifer Evans-Cowley and I consider the course materials to be openly accessible even though Coursera isn’t necessarily open (unless you sign up for a course). We haven’t run into a situation yet where we had to tell someone we couldn’t share information from or about the course. That I know of we have not had any situations where Coursera restricted us from doing so either. The question of “ownership” hasn’t come up.

MOOCs are often cast as a disruptive innovation that could threaten higher education– what is your take?

In my opinion MOOCs are just another form of online education. Perhaps the disruptive aspects are the scale and cost. The issue with new models of education is that both the instructor AND the learner need to understand the process and expectations. I think we should actually be teaching more classes about learning, knowledge, and discovery – but unfortunately you don’t see those words used on job descriptions so we don’t make them priorities. The only threat to higher education is higher education itself. In many cases these are very slow moving institutions that are more than happy to keep doing things the old way. I think the university business model is in dire need of change.

Looking at the syllabus, open data seems to play a large role in this course—how would you summarize the challenges and opportunities for cities in providing it?

The challenge is to organize the huge amount of data generated by and within cities, and make it available in meaningful and useful ways for residents, businesses, and entrepreneurs. I think cities can provide the data and have the crowd come up with innovative ways to use it. This is especially exciting when it enhances transparency and accountability. An example is the City of Baltimore (see: The site makes data available as well as analytical tools, maps, and other visualizations. There are some great research opportunities as well.

Do you think students were well prepared for interaction with data, or do you see a need for more training in the use and manipulation of data?

I think this is a particular need in the field of planning, especially with the rise of “big data” and associated analytics. Planning programs tend to require quantitative methods, but usually in the form of statistics and not really “data science”. Many students coming to planning have design interests so data analysis isn’t of particular interest. There will continue to be more and more demand for data experts.

Do you plan to teach the course again next year?

Yes, we’ll be teaching it again, probably in the Spring. This will give us another opportunity to improve the course using feedback we received from students so far.

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Book Review: The Virtues of Openness

The Virtues of Openness

The Virtues of Openness: Education, Science, and Scholarship in the Digital Age by Michael A. Peters and Peter Roberts (2012) will appeal to anyone interested in open movements in respect to academia. The book includes eight chapters (three of which were previously published), an introduction, postscript, and extensive references. The authors are both professors of education in New Zealand (Peters at the University of Waikato; Roberts at the University of Canterbury).

In addition to exploring the many aspects of openness (which makes defining it so difficult), the authors make an important point that bears remembering when we are tempted by binary conceptions such as open or not (Introduction, p.6):

All open systems have limits, and there are limits to openness– limits to “open” markets, to open societies, to open code.

It’s a theme the authors return to repeatedly, particularly in the context of the philosophy of education, also noting that these limits can serve positive functions.

Chapter 4, “Open Education and Open Knowledge Production” (p. 55-76) covers the serials crisis and open access with the greatest depth, but I learned the most from Chapter 2, “The Philosophy of Open Science” (p. 30-42), and Chapter 3, “Openness as an Educational Virtue” (p. 43-54). Chapter 2 begins by emphasizing the narratives of openness in the West and their relation to Enlightenment thought, in particular the ways in which openness is freedom. The bulk of the chapter goes on to consider philosophies of openness from various thinkers. Of particular interest are the connections between thinkers leading up to the concept of open access for scholarly literature. Karl Popper (author of The Open Society And Its Enemies) was a strong influence on George Soros, whose Open Society Institute (now the Open Society Foundations) was the driving force behind the Budapest Open Access Initiative. Here the political conception of an open society contains both the market and science as primary institutions based on shared values of freedom and truth, though it’s worth noting how often these institutions are in conflict today. Indeed, the authors make this clear in their summary of Chapter 4 (p. 76):

In essence, the open knowledge economy provides a completely different model to the neoliberal knowledge economy and also challenges the underlying neoliberal ideas of ownership, authorship, human capital, and intellectual property rights as well as principles of the access, distribution, and creation of knowledge.

In chapter 3 (“Openness as an Educational Virtue”), a philosophy of openness in pedagogy focuses on the work of Brazilian educationist Paulo Freire. Openness, the authors contend, includes but is not limited to open-mindedness, and is contrasted with forms of closure such as “dogmatism, excessive certainty, and an unreflective rejection of either the old or the new” (p. 44). Throughout his career, Freire identified human characteristics of value in teaching and learning situations, such as “humility, the ability to listen, showing care and respect for those with whom we work in educational settings, tolerance, an inquiring and investigative frame of mind, and a willingness to take risks” (p. 49). For Freire, openness is a permanent orientation to life itself, recognizing that we are always unfinished beings.

The authors view the university emphasis on performance as a form of closure in Chapter 5 (“Scholarly Publishing and the Politics of Openness: Knowledge Production in Contemporary Universities”), stating that “it is performance, not knowledge, that counts” (p. 82, 83):

Performance, as measured by lists of “outputs,” becomes the accepted substitute for knowledge and is seen as translatable across individuals, departmental groupings, disciplines, and institutions.

And these outputs must be quantified (p. 84):

…research activity counts only insofar as it is measurable. Behind this trend lies a quest for certainty, a discomfort with that which is complex or messy, and an inability to deal with the immeasurable.

Although the ongoing revolution in scholarly communication also relies in part on measurables such as review and altmetric scores, it shows a willingness to deal with uncertainty and the immeasurable through open peer review and post-publication peer review. The authors identify an interesting casualty of the culture of performativity, which is time, or the lack of it (p. 87). One problem not addressed here is that being open is more time-consuming in the current publishing environment. Those who want to be open must make additional effort, whether it is seeking out an open access journal, archiving their manuscript, or organizing, describing, and providing access to their data. Clearly norms must change so that closure is not the easy, time-saving alternative. Time pressures also drive quantification in academic evaluation, since it is faster to look at scores than to read someone’s scholarship.

At times The Virtues of Openness shows considerable overlap in chapter topics; at other times the transitions between chapters are jarring, perhaps because some were previously published. As such, the book feels like a collection of chapters rather than a connected narrative. Also, a few of the figures and tables are either not particularly enlightening (“Applications of openness” on p. 67) or outdated (2001 scientific publishing market players, p. 58).

However, this volume is a solid resource for those interested in exploring the thinkers who have contributed to the philosophy of openness in a variety of disciplines. The authors do an admirable, mostly jargon-free job of introducing and clarifying different aspects of openness, and of emphasizing its limits.

The Virtues of Openness is available in Newman Library and from the publisher.

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Thoughts on The Internet’s Own Boy

Over the weekend I got around to watching The Internet’s Own Boy: The Story of Aaron Swartz which saw wide release a couple of weeks ago (see the viewing options on the distributor’s site or watch on the Internet Archive- it’s CC-licensed).

Aaron Swartz
Aaron Swartz
(by Sage Ross,
Wikimedia Commons
CC-BY-SA 2.0)

It’s a fascinating documentary that should be required viewing for anyone interested in access to information. Swartz’s immense intelligence and idealism shine through, as does his love of libraries and the information contained in them. His precocity and deep understanding of the Internet resulted in numerous successes, some of which I wasn’t previously aware of.

Ultimately it was his willingness to put his name on the Guerilla Open Access Manifesto, followed by action to presumably realize it (though his intent is unknown), that made him a target of prosecution. Watching this part of the documentary, the harshness of the law becomes clear, and one wonders what part of the law legitimizes prosecution for the purpose of making an example of someone.

While I don’t agree with the manifesto’s method, or even much of its language, Swartz was certainly right about open access, just as he was right about public access to court records and the potential harm of SOPA/PIPA. Even if all new peer-reviewed literature is openly available tomorrow, we are still left with the intractable fact that we have allowed centuries of scholarship to be enclosed, and libraries will be paying rent (for the fortunate few) for decades to come.

When this CC-licensed documentary can be taken off of YouTube, and when lawyers are preparing for the return of SOPA/PIPA, the contest between advocates of openness and the forces of enclosure is hardly over. Despite his tragic end, we have a model of courage when we insist that our practices follow our ideals– in particular, that public knowledge should never be enclosed. In that sense, Aaron Swartz is still with us.

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The Open Knowledge MOOC

Registration has recently opened for the Open Knowledge MOOC, a course that introduces the concept of openness and covers open access, open science, and open education, among other open movements. Hosted on the OpenEdX platform by Stanford University, this is a semester-long course that runs from September 3 to December 12, 2014. The course material for Week 12, “Student Publishing: Lessons in Publishing, Peer Review, and Knowledge Sharing” was selected or developed by librarians at Virginia Tech, in collaboration with our partner library at the Cape Peninsula University of Technology in Cape Town, South Africa.

Open Knowledge MOOC

I’m a member of the team at the University Libraries that worked on the “Student Publishing” module, along with Anita Walz, Paul Hover, Jennifer Nardine, and Scott Pennington. A brief presentation describing our work, “Student Publishing: An Open, Global Learning Module” was made at the Dean’s Forum on Global Engagement in March 2014. The module includes readings, videos, assignments, and classroom activities (for the blended version offered by several universities around the world). If you take the course, we would love to hear feedback about ways to improve the module.

During his visit to Virginia Tech last October, John Willinsky told us about planning for the course, and suggested that we contribute to it. We chose Student Publishing for our module, planning to reach out to student journals on campus to strengthen ties to the library. Due to time constraints, that outreach is still in progress, but one potential outcome would be hosting through our e-journal publishing services. Student journals are challenged by frequent transitions in their editorial staff, with a resulting loss of information and expertise. Library hosting would ensure that proper transfer of administrative information happens, and librarians can also advise on indexing, copyright/licensing, and preservation.

The vagueness of the term “open” combined with a lack of critical examination leaves plenty of room for openwashing, and MOOCs are no exception. Given its subject, it is particularly important that the Open Knowledge course embody open practices rather than merely suggest them. This course is different from traditional MOOCs in its connectivist approach (see xMOOC vs. cMOOC), its Creative Commons Attribution Share-Alike (CC-BY-SA) licensing, its crowdsourced content, and its emphasis on the re-use of existing openly licensed educational resources. In addition, course modules will remain accessible afterward, unlike proprietary MOOCs. It’s as open as we could make it, so I hope you’ll give it a try.

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Worth Reading: Elsevier Costs, Funding OA, Peer Review Platforms, A Publishing Story

Last week Tim Gowers wrote an extensive post on the cost of Elsevier journals that begins to create some transparency in this market. Much of the data so far is from UK universities, but cost data from U.S. universities (including other publishers) should be available soon from Ted Bergstrom’s Big Deal Contract Project.

Providing adequate funding for open access platforms and innovations is becoming an increasingly hot topic, and two excellent posts with different perspectives have recently appeared. Stuart Shieber’s Public Underwriting of Research and Open Access offers a convincing case for open access to research that reminded me of John Willinsky’s keynote address during Virginia Tech’s Open Access Week. Counting up the ways that research is subsidized results in a truly stunning number, and Shieber makes a solid argument for public funding. Cameron Neylon, on the other hand, notes that much of the innovation in scholarly communication comes from the for-profit sector, yet non-profit status is needed to to retain control and prevent diverging interests. So how should we go about funding innovation in scholarly communication? Perhaps OA projects could benefit from socially responsible investing?

One innovation in need of funding is open peer review platforms like LIBRE, which just announced that it is in beta testing. While I like the diversity of opinion that open review makes possible, I think there still may be a role for anonymity, and I’m also skeptical of the invite-your-own-reviewers model. Although it has been around for a while, I only recently discovered a community-edited Google document of standalone peer review platforms, and was surprised by how many there are. I think it would be great if one day I could upload a paper to VTechWorks, have it openly reviewed, and then submit it in my tenure and promotion dossier as a peer-reviewed paper. Then evaluation would have to focus on article quality rather than journal prestige or impact factor.

So few accounts of the publishing process appear that one in my own field of library and information science is definitely worth mention. Catherine Pellegrino’s Walking the walk may be trickier than it first appears: An open access publishing story relates her assessment of publishing venues while feeling the stress of needing to publish. This OA-conscious assessment, and her negotiation to retain copyright, serves as a worthy model for librarians (and non-librarians).

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Library Support for New Open Access Business Models

The University Libraries at Virginia Tech is now supporting two innovative open access efforts, Knowledge Unlatched and PeerJ. Knowledge Unlatched enables open access for books in the humanities and social sciences, while PeerJ is an open access journal in the life sciences.

Open access journals are hardly new, but PeerJ is pioneering a new pricing model that dispenses with article processing charges (APCs) in the thousands of dollars. Instead, it charges for lifetime memberships in three tiers. The University Libraries is now automatically covering these fees for Virginia Tech authors. The fees are slightly different since payment only occurs upon article acceptance, and there is a discount for purchasing memberships in bulk. Prices are radically lower than the APCs charged by other journals, and PeerJ has received positive reviews, especially for its fast peer review process. We hope our authors in the biological, medical, and health sciences will benefit from this arrangement.

The University Libraries is also a charter member of Knowledge Unlatched and provided support for its pilot collection of 28 open access monographs (at this writing 22 have been made available). PDFs of the books will be available (with no DRM) under a Creative Commons license. The project benefits all involved, and the Featured Authors section is particularly worth reading. Given the strain that scholarly monograph publishing has been under in recent years, Knowledge Unlatched and other open monograph initiatives have the potential to begin turning things around. While this support for KU does not provide direct aid to Virginia Tech authors, it does reduce the pressure on academic presses, and hopefully more books in the humanities and social sciences can be published.

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Book Review: Reclaiming Fair Use

Reclaiming Fair Use Reclaiming Fair Use: How to Put Balance Back in Copyright by Patricia Aufderheide and Peter Jaszi was published by the University of Chicago Press in 2011. It’s a well-written history of fair use interpretation and an important corrective to over-cautiousness in asserting user rights. Fair use is a provision of U.S. copyright law that, broadly speaking, allows use of copyrighted works when the social benefit is greater than the owner’s loss. The law sets out four factors which are used to determine whether fair use can be employed: the nature of the use, the nature of the work used, the extent of the use, and its potential economic effect. But since there is no bright line or definitive calculation of the four factors (and other factors which may have bearing), the effect has been limiting (p. xi):

We saw that when people do not understand the law, when they are constantly afraid that they might get caught for referring to copyrighted culture- whether an image, or a phrase of a song, or a popular cartoon character- they can’t do their best work.

Aufderheide and Jaszi feel that the four factors (and checklists based on them) have been hindrance (p. 183):

People love checklists, because they hope that the lists will do their fair-use reasoning for them. But checklists tend to be more trouble than help. Sometimes a checklist simply discourages fair use in situations where the user might have an adequate rationale not captured by the list. More often, checklists simply lead to further confusion. Focused on the four factors, they treat the factors as if they had a concreteness that they do not. Those four factors have been widely interpreted by judges over the years.

Instead they distill fair use evaluation into three questions (p. 24 and 135):

Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose? Was the amount of material taken appropriate to the purpose of the use? Was it reasonable within the field or discipline it was made in?

The first and third questions are especially important in the revitalization of fair use. While copyright has become “long and strong” in recent decades, fair use has made a comeback since the late 1990s to lend the law more balance. Fair use interpretations have been primarily strengthened in two ways: first through the concept of transformativeness (use for a different purpose than originally intended), and more recently through development of codes of practice for particular fields. Both are now major considerations by courts (p. 80). Aufderheide and Jaszi have been leaders in developing best practices for various communities, first with documentary filmmakers (a process related in Chapter 7) and most recently as contributors to initial work toward a code of practice for the visual arts (PDF).

Codes of best practice “represent a common understanding in a community of practice” (p. 120) and emphasize demonstrating good faith (e.g. through attribution). The codes developed thus far are in agreement on three areas of fair use: critique, illustration, and incidental capture. The codes are also balanced in the sense that the communities (e.g. documentary filmmakers) are often creators as well, so they must take into account how their own work might be used. Aufderheide and Jaszi emphasize that, like a muscle, fair use is strengthened by use– it is one arena in which behavior affects the law, not vice-versa. In addition to communities of practice, the law provides exceptions for certain kinds of use, such as the educational exemptions in Section 110-1 and 110-2.

While the authors champion fair use, they are clear about the problems that remain. In the digital environment, many works are leased rather than owned, and contracts may include language limiting fair use rights. The Digital Millennium Copyright Act (DMCA) of 1998 made it illegal to override digital encryption, so exercising one’s fair use rights becomes impossible. Reliance on the courts to interpret fair use has its disadvantages, and one casualty has been music sampling. The interaction of three court cases has severely limited fair use for music (p. 90-93). Formal copyright registration entitles owners to statutory damages, and the potential maximum has a chilling effect (p. 32). The courts have also expanded secondary liability. The authors call for for advocacy on DMCA reform as well as on orphan works.

Aufderheide and Jaszi are unexpectedly critical of free-culture and commons advocates. They indict free-culture activists for making copyright the villain (p. 48) and seeking alternatives elsewhere rather than acknowledging balancing effects of copyright law such as fair use (p. 54):

The commons rhetoric… celebrates a particular vision of the public domain as a space entirely free of intellectual property constraint, while either ignoring or slighting exemptions and balancing features that limit copyright owners’ monopoly control.

Yet the commons is growing steadily, and search engines now allow users to filter images by license. And in their discussion of the public domain (p. 141), the authors fail to mention the Creative Commons Zero (CC0) license for intentionally placing works in the public domain. While commons advocates may have overlooked fair use, the unnecessary distinction between the two approaches is contradicted by the authors’ own work on a code of practice for OpenCourseWare, which relies on both open licensing and fair use.

The international environment for fair use is covered in Chapter 10. Most countries lack a fair use provision, but have a much lower risk of litigation and lack statutory damages for infringement. Because fair use is the exception rather than the rule, harmonization of copyright through treaties is a continuing threat to it.

Fair use is deliberately vague, and always a case-by-case decision. To Aufderheide and Jaszi, this is a feature, not a bug (p. 163):

Creators benefit from the fact that the copyright law does not exactly specify how to apply fair use…. Fair use is flexible; it is not uncertain or unreliable.

Reclaiming Fair Use features inset boxes throughout the text, “Fair Use: You Be The Judge” (with answers at the back) and “True Tales of Fair Use,” and has five useful appendices, including a template for a code of best practices and a section on myths and realities of fair use. While it contains more background than some readers may desire (they can go straight to Chapter 9, “How To Fair Use”), this book is a valuable perspective on fair use and always interesting and well-written.

More information about fair use, including codes of practice, can be found at the Center for Media & Social Impact at American University, which Aufderheide co-directs. In addition, Jaszi provided testimony on fair use to a House of Representatives subcommittee in January (his testimony begins at 39:00 in the video, and his written submission is available in PDF).

Reclaiming Fair Use is available as an e-book through the University Libraries.

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