Tag: scholarly communication
Workshop reminder — Copyright & Your Dissertation
Date/Time: Tuesday, October 1, 2024, 11:00am–12:00pm
Location: Zoom. RSVP.
This workshop will provide you with practical guidance for navigating copyright questions and other legal considerations for your dissertation or thesis. Whether you’re just starting to write or you’re getting ready to file, you can use our tips and workflow to figure out what you can use, what rights you have as an author, and what it means to share your dissertation online.
Workshop reminder — Publish Digital Books & Open Educational Resources with Pressbooks
Date/Time: Tuesday, September 17, 2024, 11:00am–12:00pm
Location: Zoom. RSVP.
If you’re looking to self-publish work of any length and want an easy-to-use tool that offers a high degree of customization, allows flexibility with publishing formats (EPUB, PDF), and provides web-hosting options, Pressbooks may be great for you. Pressbooks is often the tool of choice for academics creating digital books, open textbooks, and open educational resources, since you can license your materials for reuse however you desire. Learn why and how to use Pressbooks for publishing your original books or course materials. You’ll leave the workshop with a project already under way.
Curious about how UC Berkeley faculty, students, and staff have used Pressbooks? Check out some of the Berkeley-created digital books and resources below, or browse over 7,200 open access books on the Pressbooks Directory.
Fall 2024 copyright and publishing workshops with the Library’s Scholarly Communication & Information Policy office
With the school year kicking off at UC Berkeley, the Library’s Scholarly Communication & Information Policy office is here to help faculty, students, and staff understand copyright and scholarly publishing with online resources, Zoom workshops, and consultations. Here’s what’s coming up this semester.
Workshops
Publish Digital Books & Open Educational Resources with Pressbooks
Date/Time: Tuesday, September 17, 2024, 11:00am–12:00pm.
RSVP to get the Zoom link
If you’re looking to self-publish work of any length and want an easy-to-use tool that offers a high degree of customization, allows flexibility with publishing formats (EPUB, PDF), and provides web-hosting options, Pressbooks may be great for you. Pressbooks is often the tool of choice for academics creating digital books, open textbooks, and open educational resources, since you can license your materials for reuse however you desire. Learn why and how to use Pressbooks for publishing your original books or course materials. You’ll leave the workshop with a project already under way.
Copyright and Your Dissertation
Date/Time: Tuesday, October 1, 2024, 11:00am–12:00pm.
RSVP to get the Zoom link
This workshop will provide you with practical guidance for navigating copyright questions and other legal considerations for your dissertation or thesis. Whether you’re just starting to write or you’re getting ready to file, you can use our tips and workflow to figure out what you can use, what rights you have as an author, and what it means to share your dissertation online.
Managing and Maximizing Your Scholarly Impact
Date/Time: Tuesday, October 15, 2024, 11:00am–12:00pm
RSVP to get the Zoom link
This workshop will provide you with practical strategies and tips for promoting your scholarship, increasing your citations, and monitoring your success. You’ll also learn how to understand metrics, use scholarly networking tools, and evaluate journals and publishing options.
From Dissertation to Book: Navigating the Publication Process
Date/Time: Tuesday, November 12, 2024, 11:00am–12:30pm
RSVP to get the Zoom link
Hear from a panel of experts—an acquisitions editor, a first-time book author, and an author rights expert—about the process of turning your dissertation into a book. You’ll come away from this panel discussion with practical advice about revising your dissertation, writing a book proposal, approaching editors, signing your first contract, and navigating the peer review and publication process.
Other ways we can help you
In addition to the workshops, we’re here to help answer a variety of questions you might have on intellectual property, digital publishing, and information policy.
- Check out our website for information on issues such as copyright and fair use, scholarly publishing, open access, and more.
- Have a question about copyright and artificial intelligence (AI) in relation to research and scholarship? Or your rights and responsibilities in using library-licensed materials for AI use? View the AI page on our website for guidance.
- Interested in publishing your research open access? UCB Library can help defray the costs of an article processing charge (up to $2,500) or book processing charge (up to $10,000). See the Berkeley Research Impact Initiative (BRII) for more information. And explore the various UC-wide open access agreements and discounts that can help UC corresponding authors publish their scholarship open access.
- Do you want to create an open digital textbook? Take a look at UC Berkeley’s Open Book Publishing platform (anyone with a @berkeley.edu email can sign up for a free account), and get in touch with us about our Open Educational Resources (OER) grant program.
- Keep an eye on the Library’s events calendar for more workshops and trainings.
Want help or more information? Send us an email at schol-comm@berkeley.edu. We can provide individualized support and personal consultations, online class instruction, presentations and workshops for small or large groups & classes, and customized support and training for departments and disciplines.
When Copyright and Contracts Collide: Advocacy for Library and User Rights
In the ever-evolving landscape of digital access to scholarly research, libraries face new challenges as they navigate the intersection of copyright law and contractual agreements. Academic institutions increasingly rely on digital content, and understanding how copyright exceptions and contract law interact is crucial for protecting the rights of libraries and our users.
Tim Vollmer (Scholarly Communication & Copyright Librarian, UC Berkeley), Sara Benson (Copyright Librarian and Associate Professor, University of Illinois-Urbana Champaign), Jonathan Band (copyright attorney and counsel to the Library Copyright Alliance), and Jim Neal (University Librarian Emeritus, Columbia University) presented on these issues at the 2024 American Library Association Annual Conference in San Diego. Our panel was titled When Copyright and Contracts Collide: Advocacy for Library and User Rights.
The Role of Copyright Exceptions
Sara set the stage for our discussion by describing the importance of limitations and exceptions to copyright that empower libraries, research, and teaching. For example, Section 108 of the U.S. Copyright Act allows libraries and archives to make limited copies of copyrighted materials for preservation, replacement, fulfilling interlibrary loan requests, and more. Fair use—Section 107 of the Act—permits limited use of copyrighted works without having to seek the copyright holder’s permission when the use is for purposes such as teaching, research, scholarship, reporting, criticism, or parody. Faculty, students, and academic authors leverage fair use when they incorporate copyrighted materials for teaching, research, and publishing. And the fair use exception has played an increasingly important role in facilitating new types of scholarly research, including text and data mining.
The Threat of Contractual Override
Despite these protections, contractual agreements can sometimes override copyright exceptions. Vendor licensing terms may include clauses that restrict activities such as text and data mining. And even though fair use is a statutory right (meaning it’s in the law) in the U.S., and even though there have been court cases that confirm that activities such as text data mining falls under fair use, there is no protection against the practice where private parties such as academic publishers “contract around” fair use for actions that already are lawful.
As a result, academic libraries are forced to negotiate and often pay significant sums each year to try to preserve fair use rights for campus scholars through the database and electronic content license agreements that they sign.
Jonathan discussed alternative international approaches to the problem of contractual override. The European Union, for example, has implemented directives that nullify contract terms which override specific copyright exceptions. Countries like Australia, New Zealand, and Norway have also adopted similar measures. However, the United States and Canada lack comprehensive contract override prevention laws, making it challenging to protect copyright exceptions at the national level.
Advocating for Fair Contracts in Library Licensing
Tim discussed how academic libraries are demanding license agreements that preserve fair use rights. But at the same time, libraries are already starting to see contract amendments put forth by scholarly publishers that attempt to impose outright bans on any use of artificial intelligence (AI) tools for the content we’re licensing from them. The challenge is that we know that researchers are using library-licensed materials for many AI uses in the context of nonprofit scholarship and research, and these uses should be a fair use, just as it’s fair use for researchers to conduct text data mining on licensed resources.
Library workers can smartly negotiate to protect the rights of instructors, students, and other academic community members to use library-licensed resources in the ways they need to conduct their teaching and research while simultaneously taking into consideration the concerns of publishers.
Moving Forward: A Coordinated Approach
To address the issue of contractual override, Jim suggested several approaches, including educating library stakeholders such as administrators and faculty, building constructive relationships with publishers, monitoring international developments, and pursuing legislative change to protect copyright exceptions.
The University of California Libraries are already collaborating on this and related issues with our colleagues. After outreach to several library and faculty committees, the UC’s Academic Senate sent a letter to UC President Michael Drake to advocate that the UC Libraries need to be able to negotiate to preserve fair use rights when licensing electronic resources—including the rights to conduct computational research and utilize AI tools in academic studies and scholarship. President Drake and UC System Provost and Executive Vice President for Academic Affairs Katherine S. Newman affirmed this commitment.
Please reach out to schol-comm@berkeley.edu with any questions. For more information, please see the links below.
- Association of Research Libraries: Copyright and Contracts: Issues & Strategies
- Jonathan Band: Protecting User Rights Against Contract Override
- Rachael G. Samberg, Samantha Teremi, Timothy Vollmer: Fair use rights to conduct text and data mining and use artificial intelligence tools are essential for UC research and teaching
- UCNet: President Drake and Provost Newman affirm the university’s commitment to protect author, researcher and reader rights
The Bancroft Library’s San Francisco Examiner photograph archive
As part of the UC Berkeley University Library’s ongoing commitment to make all our collections easier to use, reuse, and publish from, we are excited to announce that we have just eliminated licensing hurdles for use of over 5 million photographs taken by San Francisco Examiner staff photographers in our Fang family San Francisco examiner photograph archive negative files, BANC PIC 2006.029–NEG, and Fang family San Francisco examiner photograph archive photographic print files, BANC PIC 2006.029–PIC.
Every photograph within these photographic print and negative collections that were taken by an SF Examiner staff photographer are now licensed under a Creative Commons Attribution 4.0 license (CC BY 4.0). This means that anyone around the world can incorporate these photos into papers, projects, and productions—even commercial ones—without ever getting further permission or another license from us.
What is the San Francisco Examiner collection?
The SF Examiner has been published since 1863, and continues to be one of The City’s daily newspapers. It was acquired by George Hearst in 1880 and given to his son, William Randolph Hearst, in 1887. It was the founding cornerstone of the Hearst media empire, and remained part of the Hearst Corporation’s holdings until it was sold, in 2000, to the Fang family of San Francisco. In 2006 the Examiner’s photo morgue, totaling over 5 million individual images, was donated to The Bancroft Library by the Fang family’s successors, the SF Newspaper Company, LLC.
Along with the gift of negatives and photographic prints, the copyright to all photographs taken by SF Examiner staff photographers was transferred to the UC Regents, to be managed by UC Berkeley Library. However, the copyright to works (mainly in the form of photographic prints) that appear in the collection that were not created by SF Examiner staff was not part of the copyright transfer to the University. Copyright to any works not taken by SF Examiner staff is presumed to rest with the originating agency or photographer. The Library maintains a list of known SF Examiner staff photographers and can assist in making identification of particular photographs until the metadata has been updated.
What has changed about the collection?
Although people did not previously need the UC Regents’ permission (sometimes called a “license”) to make fair uses of our SF Examiner photograph archive, because of the progressive permissions policy we created, prior to January 2024 people did need a license to reuse these works if their intended use exceeded fair use. As a result, hundreds of book publishers, journals, and film-makers sought licenses from the Library each year to publish our Examiner photos.
The UC Berkeley Library recognized this as an unnecessary barrier for research and scholarship, and has now exercised its authority on behalf of the UC Regents to freely license the SF Examiner photographs in our collection that were taken by staff photographers under a Creative Commons Attribution 4.0 license (CC BY 4.0). This license is designed for maximum dissemination and use of the materials.
How to use SF Examiner collection photographs
Now that the photographs by SF Examiner staff photographers have a CC BY license applied to them, no additional permission or license from the UC Regents or anyone else is needed to use these works, even if you are using the work for commercial purposes. No fees will be charged, and no additional paperwork is necessary from us for you to proceed with your use.
Making your usage even easier is the fact that over 22,000 of these negative strips have been digitized and made available via the Library’s Digital Collections Site, and the finding aid for the prints and negatives have more information about the photographs that have not yet been digitized.
The CC BY license does require attribution to the copyright owner, which in this case is the UC Regents. Researchers are asked to attribute use of reproductions subject to this policy as follows, or in accordance with discipline-specific standards:
Fang family San Francisco Examiner photograph archive, © The Regents of the University of California, The Bancroft Library, University of California, Berkeley. This work is made available under a Creative Commons Attribution 4.0 license.
One final note on usage: While the SF Examiner Collection now carries a CC BY license, this does not mean that other federal or state laws or contractual agreements do not apply to their use and distribution. For instance, there may be sensitive material protected by privacy laws, or intended uses that might fall under state rights of publicity. It is the researcher’s responsibility to assess permissible uses under all other laws and conditions. Please see our Permissions Policy for more information.
Other Library collections with a CC BY license
The Fang family San Francisco Examiner photograph archive joins a number of other collections that the Library has opened under a CC BY license, including the photo morgue of the San Francisco News-Call Bulletin. All of the collections that have had a CC BY license applied can be found on our Easy to Use Collections page.
Happy researching!
Supporting open access book publishing at UC Berkeley: Spring 2024 update
UC Berkeley supports a variety of ways our authors can participate in open access publishing. At its heart, open access literature is “digital, online, free of charge, and free of most copyright and licensing restrictions” (Suber, 2019). Open access materials can be read and used by anyone.
But you might be wondering, why is UC Berkeley concerned about trying to make research more openly available and accessible? Well, one fundamental reason is that the research and teaching mission of the UC includes the aim of “transmitting advanced knowledge,” and as part of doing that, our faculty, researchers, and students create and share their scholarship.
This system of scholarly publishing includes traditional publications such as peer-reviewed academic articles, scholarly chapters or books, and conference proceedings. It also includes other types of publications such as digital projects, data sets and visualizations, and working papers.
In this blog post, we first touch briefly on how the UC Berkeley Library is fostering open access publishing for journal articles, and then dive deeper into the innovative ways we’re supporting open access publishing for books.
Library Support for Open Access Articles
UC Berkeley offers a wide range of support to help authors publish scholarly articles. The UC’s system wide Open Access Policies ensure that university-affiliated authors can deposit their final, peer-reviewed research articles into eScholarship, our institutional repository, immediately upon publication in a journal. Once they’re in eScholarship, the articles may be read by anyone for free.
As of February 2024, the University of California has entered into 24 transformative open access publishing agreements with scholarly publishers. These agreements permit UC corresponding authors to publish open access in covered journals, with the publishing fees being covered in part (or in full) by the UC. In fiscal year 2022-23 UC Berkeley authors published 348 open access articles as a part of these system wide open access publishing agreements.
Locally, the UC Berkeley Library continues to offer the Berkeley Research Impact Initiative (BRII). This program helps UC Berkeley authors defray article processing charges (APCs) that are sometimes required to publish in fully open access journals (note that BRII doesn’t reimburse authors for publishing in “hybrid” journals—that is, subscription journals that simply offer a separate option to pay to make an individual article open access). This past year BRII provided funding for the publication of 60 open access articles. UC Berkeley authors can take advantage of BRII assistance where there is no other system wide open access agreement in place.
Library Support for Open Access Books
We know that not all University of California authors are publishing journal articles, and many disciplines—such as arts, humanities, and social sciences—focus on the scholarly monograph as the preferred mode of publishing. Some open access book publishers charge authors (or an author’s institution) a fee in exchange for publishing the book open access, similar to the practice of academic journal publishers charging an “author processing charge” to make a scholarly article open access.
Recently, the University of Michigan Press shared an analysis of book author impressions of open access. They found that authors can realize a wide variety of benefits with OA publishing. For example, authors viewed OA as a means to achieve a global reach with their scholarship, build relationships within their academic discipline, garner more citations, make their scholarly books more affordable for learners, improve accessibility for print-disabled users, and more.
UC Berkeley is supporting authors who wish to publish their books open access. The library provides funding assistance and access to publishing platforms and tools for UCB authors to make their books open access.
Berkeley Research Impact Initiative books
Above we mentioned how the Berkeley Research Impact Initiative helps UC Berkeley authors publish articles in fully open access journals. BRII funding can also be used to help authors pay book processing charges (up to $10,000/book) so that their monographs can be published open access. In the last year, several UCB-authored books have been published open access in part due to BRII funding support.
- Prof. Benjamin Blonder from the Department of Environmental Science, Policy, and Management (ESPM) published Place-Based Scientific Inquiry: A Practical Handbook for Teaching with Routledge (Taylor & Francis). The book is shared under the Creative Commons Attribution (CC BY) license and available as a free download.
- Prof. Youjin B. Chung, also from ESPM, published Sweet Deal, Bitter Landscape with Cornell University Press. The book is shared under the Creative Commons Attribution-NonCommercial-NoDerivatives (CC BY-NC-ND) license and available as a free download.
Springer Open Access books
In 2021, the UC Berkeley Library entered into an institutional open access book agreement with Springer Nature. The partnership provides open access funding to UC Berkeley affiliated authors who have books accepted for publication in Springer, Palgrave, and Apress imprints. This means that these authors can publish their books open access at no direct cost to them. The agreement covers all disciplines published by Springer. All the books are published under a Creative Commons Attribution (CC BY) license for free access and downloading. In the last year, several UCB-authored books have been published open access as a result of the UCB-Springer agreement.
- Prof. Mark Wilson from the School of Education published Measurement across the Sciences (2nd Edition) with Springer.
- Prof. Luyi Yang from the Haas School of Business published Innovative Priority Mechanisms in Service Operations with Springer.
- Prof. Ishaani Priyadarshini from the School of Information published 5G and Beyond with Springer.
- Prof. Sylvia Tiwon from the Department of South & Southeast Asian Studies published Trajectories of Memory: Excavating the Past in Indonesia with Palgrave Macmillan.
- Profs. David Zilberman (Department of Agricultural and Resource Economics), Jeffrey M. Perloff (Department of Agricultural and Resource Economics), and Cyndi Berck published Agriculture & Resource Economics Sustainable resource development in the 21st century: Essays in memory of Peter Berck with Springer.
- Prof. Peter Koroteev from the Department of Mathematics published Branes and DAHA Representations with Springer.
University of California Press
UC Berkeley Library continues to support open access book publishing via Luminos, the open access arm of the University of California Press. The Library membership with Luminos means that UC Berkeley authors who have books accepted for publication through the UC Press can publish their book open access with a heavily discounted book processing charge. When combined with additional funding support through BRII, a UC Berkeley book author could potentially publish their book open access with the costs being covered fully by the Library. Luminos books are published under Creative Commons licenses with free downloads.
Pressbooks platform & workshops
The UC Berkeley Library hosts an instance of Pressbooks, an online platform through which the UC Berkeley community can create open access books, open educational resources (OER), and other types of digital scholarship.
The Office of Scholarly Communication Services OSCS continues to offer a bi-annual Pressbooks workshop and demo where participants can learn how to navigate the platform and create and publish their own eBooks and open educational resources. (Note: the next Pressbooks workshop is happening on April 9, 2024. Sign up now if you’re interested!)
Every year during the fall semester OSCS hosts an author panel to unpack the process of turning a dissertation into a book. One of the topics discussed during the panel are options for open access publishing. Here’s a recording of last year’s panel discussion.
UC contributing to the broader ecosystem of open access book publishing
A near term goal of the UC Libraries is to strategically advance open scholarship by extending its support for OA book publishing. At the systemwide level, the UC is supporting several open access book publishing ventures, including Opening the Future, MIT’s Direct to Open, and the University of Michigan Press’ Fund to Mission. In general, these models secure investments from libraries or other stakeholders, and agree to publish some or all of their frontlist books open access, with limited or zero direct cost to the authors. The backlist books are made accessible to participating institutions.
Wrapping up
In this post, we highlighted several ways that the University of California—and specifically UC Berkeley—is supporting scholarly authors to create and share open access books. In addition to providing financial assistance, platforms, and publishing guidance, the Library is committed to promoting the broader OA book publishing ecosystem. We’ll continue to explore a variety of approaches to support the UC Berkeley community (and beyond) who wish to publish books on open access terms.
If you’re interested to learn more about how you can create and publish an open access book, visit our website or send an email to schol-comm@berkeley.edu.
Upcoming Workshop: Publish Digital Books and Open Educational Resources with Pressbooks
Workshop Date/Time: Tuesday, April 9, 2024, 11:00am–12:30pm
Register to receive Zoom link
If you’re looking to self-publish work of any length and want an easy-to-use tool that offers a high degree of customization, allows flexibility with publishing formats (EPUB, PDF), and provides web-hosting options, Pressbooks may be great for you. Pressbooks is often the tool of choice for academics creating digital books, open textbooks, and open educational resources, since you can license your materials for reuse however you desire. Learn why and how to use Pressbooks for publishing your original books or course materials. You’ll leave the workshop with a project already under way! Signup at the link above and the Zoom login details will be emailed to you.
Please sign up today and join us online on April 9.
Workshop Reminder — From Dissertation to Book: Navigating the Publication Process on November 9, 2023
Date/Time: Thursday, November 9, 2023, 11:00am–12:30pm
Location: Zoom only. Register via LibCal.
Hear from a panel of experts—an acquisitions editor, a first-time book author, and an author rights expert—about the process of turning your dissertation into a book. You’ll come away from this panel discussion with practical advice about revising your dissertation, writing a book proposal, approaching editors, signing your first contract, and navigating the peer review and publication process.
UC Berkeley Library to Copyright Office: Protect fair uses in AI training for research and education
We are pleased to share the UC Berkeley Library’s response to the U.S. Copyright Office’s Notice of Inquiry regarding artificial intelligence and copyright. Our response addresses the essential fair use right relied upon by UC Berkeley scholars in undertaking groundbreaking research, and the need to preserve access to the underlying copyright-protected content so that scholars using AI systems can conduct research inquiries.
In this blog post, we explain what the Copyright Office is studying, and why it was important for the Library to make scholars’ voices heard.
What the Copyright Office is studying and why
Loosely speaking, the Copyright Office wants to understand how to set policy for copyright issues raised by artificial intelligence (“AI”) systems.
Over the last year, AI systems and the rapid growth of their capabilities have attracted significant attention. One type of AI, referred to as “generative AI”, is capable of producing outputs such as text, images, video, or audio (including emulating a human voice) that would be considered copyrightable if created by a human author. These systems include, for instance, the chatbot ChatGPT, and text-to-image generators like DALL·E, Midjourney, and Stable Diffusion. A user can prompt ChatGPT to write a short story that features a duck and a frog who are best friends, or prompt DALL·E to create an abstract image in the style of a Jackson Pollock painting. Generative AI systems are relevant to and impact many educational activities on a campus like UC Berkeley, but (at least to date) have not been the key facilitator of campus research methodologies.
Instead, in the context of research, scholars have been relying on AI systems to support a set of research methodologies referred to as “text and data mining” (or TDM). TDM utilizes computational tools, algorithms, and automated techniques to extract revelatory information from large sets of unstructured or thinly-structured digital content. Imagine you have a book like “Pride and Prejudice.” There are nearly infinite volumes of information stored inside that book, depending on your scholarly inquiry, such as how many female vs. male characters there are, what types of words the female characters use as opposed to the male characters, what types of behaviors the female characters display relative to the males, etc. TDM allows researchers to identify and analyze patterns, trends, and relationships across volumes of data that would otherwise be impossible to sift through on a close examination of one book or item at a time.
Not all TDM research methodologies necessitate the usage of AI systems to extract this information. For instance, as in the “Pride and Prejudice” example above, sometimes TDM can be performed by developing algorithms to detect the frequency of certain words within a corpus, or to parse sentiments based on the proximity of various words to each other. In other cases, though, scholars must employ machine learning techniques to train AI models before the models can make a variety of assessments.
Here is an illustration of the distinction: Imagine a scholar wishes to assess the prevalence with which 20th century fiction authors write about notions of happiness. The scholar likely would compile a corpus of thousands or tens of thousands of works of fiction, and then run a search algorithm across the corpus to detect the occurrence or frequency of words like “happiness,” “joy,” “mirth,” “contentment,” and synonyms and variations thereof. But if a scholar instead wanted to establish the presence of fictional characters who embody or display characteristics of being happy, the scholar would need to employ discriminative modeling (a classification and regression technique) that can train AI to recognize the appearance of happiness by looking for recurring indicia of character psychology, behavior, attitude, conversational tone, demeanor, appearance, and more. This is not using a generative AI system to create new outputs, but rather training a non-generative AI system to predict or detect existing content. And to undertake this type of non-generative AI training, a scholar would need to use a large volume of often copyright-protected works.
The Copyright Office is studying both of these kinds of AI systems—that is, both generative AI and non-generative AI. They are asking a variety of questions in response to having been contacted by stakeholders across sectors and industries with diverse views about how AI systems should be regulated. Some of the concerns expressed by stakeholders include:
- Who is the “author” of generative AI outputs?
- Should people whose voices or images are used to train generative AI systems have a say in how their voices or images are used?
- Should the creator of an AI system (whether generative or non-generative) need permission from copyright holders to use copyright-protected materials in training the AI to predict and detect things?
- Should copyright owners get to opt out of having their content used to train AI? Should ethics be considered within copyright regulation?
Several of these questions are already the subject of pending litigation. While these questions are being explored by the courts, the Copyright Office wants to understand the entire landscape better as it considers what kinds of AI copyright regulations to enact.
The copyright law and policy landscape underpinning the use of AI models is complex, and whatever regulatory decisions that the Copyright Office makes will bear ramifications for global enterprise, innovation, and trade. The Copyright Office’s inquiry thus raises significant and timely legal questions, many of which we are only beginning to understand.
For these reasons, the Library has taken a cautious and narrow approach in its response to the inquiry: we address only two key principles known about fair use and licensing, as these issues bear upon the nonprofit education, research, and scholarship undertaken by scholars who rely on (typically non-generative) AI models. In brief, the Library wants to ensure that (1) scholars’ voices, and that of the academic libraries who support them, are heard to preserve fair use in training AI, and that (2) copyright-protected content remains available for AI training to support nonprofit education and research.
Why the study matters for fair use
Previous court cases like Authors Guild v. HathiTrust, Authors Guild v. Google, and A.V. ex rel. Vanderhye v. iParadigms have addressed fair use in the context of TDM and determined that the reproduction of copyrighted works to create and text mine a collection of copyright-protected works is a fair use. These cases further hold that making derived data, results, abstractions, metadata, or analysis from the copyright-protected corpus available to the public is also fair use, as long as the research methodologies or data distribution processes do not re-express the underlying works to the public in a way that could supplant the market for the originals. Performing all of this work is essential for TDM-reliant research studies.
For the same reasons that the TDM process is fair use of copyrighted works, the training of AI tools to do that TDM should also be fair use, in large part because training does not reproduce or communicate the underlying copyrighted works to the public. Here, there is an important distinction to make between training inputs and outputs, in that the overall fair use of generative AI outputs cannot always be predicted in advance: The mechanics of generative models’ operations suggest that there are limited instances in which generative AI outputs could indeed be substantially similar to (and potentially infringing of) the underlying works used for training; this substantial similarity is possible typically only when a training corpus is rife with numerous copies of the same work. However, the training of AI models by using copyright-protected inputs falls squarely within what courts have determined to be a transformative fair use, especially when that training is for nonprofit educational or research purposes. And it is essential to protect the fair use rights of scholars and researchers to make these uses of copyright-protected works when training AI.
Further, were these fair use rights overridden by limiting AI training access to only “safe” materials (like public domain works or works for which training permission has been granted via license), this would exacerbate bias in the nature of research questions able to be studied and the methodologies available to study them, and amplify the views of an unrepresentative set of creators given the limited types of materials available with which to conduct the studies.
Why access to AI training content should be preserved
For the same reasons, it is important that scholars’ ability to access the underlying content to conduct AI training be preserved. The fair use provision of the Copyright Act does not afford copyright owners a right to opt out of allowing other people to use their works for good reason: if content creators were able to opt out, the provision for fair use would be undermined, and little content would be available to build upon for the advancement of science and the useful arts. Accordingly, to the extent that the Copyright Office is considering creating a regulatory right for creators to opt out of having their works included in AI training, it is paramount that such opt-out provision not be extended to any AI training or activities that constitute fair use, particularly in the nonprofit educational and research contexts.
AI training opt-outs would be a particular threat for research and education because fair use in these contexts is already becoming an out-of-reach luxury even for the wealthiest institutions. Academic libraries are forced to pay significant sums each year to try to preserve fair use rights for campus scholars through the database and electronic content license agreements that libraries sign. In the U.S., the prospect of “contractual override” means that, although fair use is statutorily provided for, private parties (like publishers) may “contract around” fair use by requiring libraries to negotiate for otherwise lawful activities (such as conducting TDM or training AI for research), and often to pay additional fees for the right to conduct these lawful activities on top of the cost of licensing the content, itself. When such costs are beyond institutional reach, the publisher or vendor may then offer similar contractual terms directly to research teams, who may feel obliged to agree in order to get access to the content they need. Vendors may charge tens or even hundreds of thousands of dollars for this type of access.
This “pay-to-play” landscape of charging institutions for the opportunity to rely on existing statutory rights is particularly detrimental for TDM research methodologies, because TDM research often requires use of massive datasets with works from many publishers, including copyright owners that cannot be identified or who are unwilling to grant licenses. If the Copyright Office were to enable rightsholders to opt-out of having their works fairly used for training AI, then academic institutions and scholars would face even greater hurdles in licensing content for research purposes.
First, it would be operationally difficult for academic publishers and content aggregators to amass and license the “leftover” body of copyrighted works that remain eligible for AI training. Costs associated with publishers’ efforts in compiling “AI-training-eligible” content would be passed along as additional fees charged to academic libraries. In addition, rightsholders might opt out of allowing their work to be used for AI training fair uses, and then turn around and charge AI usage fees to scholars (or libraries)—essentially licensing back fair uses for research. These scenarios would impede scholarship by or for research teams who lack grant or institutional funds to cover these additional expenses; penalize research in or about underfunded disciplines or geographical regions; and result in bias as to the topics and regions studied.
Scholars need to be able to utilize existing knowledge resources to create new knowledge goods. Congress and the Copyright Office clearly understand the importance of facilitating access and usage rights, having implemented the statutory fair use provision without any exclusions or opt-outs. This status quo should be preserved for fair use AI training—and particularly in the nonprofit educational or research contexts.
Our office is here to help
No matter what happens with the Copyright Office’s inquiry and any regulations that ultimately may be established, the UCB Library’s Office of Scholarly Communication Services is here to help you. We are a team of copyright law and information policy (licensing, privacy, and ethics) experts who help UC Berkeley scholars navigate legal, ethical, and policy considerations in utilizing resources in their research and teaching. And we are national and international leaders in supporting TDM research—offering online tools, trainings, and individual consultations to support your scholarship. Please feel free to reach out to us with any questions at schol-comm@berkeley.edu.
Workshop Reminder — How to Publish Open Access at UC Berkeley on October 17, 2023
Date/Time: Tuesday, October 17, 2023, 11:00am–12:30pm
Location: Zoom only. Register via LibCal.
Are you wondering what processes, platforms, and funding are available at UC Berkeley to publish your research open access (OA)? This workshop will provide practical guidance and walk you through all of the OA publishing options and funding sources you have on campus. We’ll explain: the difference between (and mechanisms for) self-depositing your research in the UC’s institutional repository vs. choosing publisher-provided OA; what funding is available to put toward your article or book charges if you choose a publisher-provided option; and the difference between funding coverage under the UC’s systemwide OA agreements vs. the Library’s funding program (Berkeley Research Impact Initiative). We’ll also give you practical tips and tricks to maximize your retention of rights and readership in the publishing process.
Join us next week!