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May 02, 2006

Xena Dissertation featured in the The Chronicle of Higher Education: Digital Dissertation Dust-Up

This still lives behind the firewall (and may well live there forever, I think). So here's some excerpts from it, with some bib information. It is a topic near and dear to my heart, so I have some comments to throw in before you get to the part that mentions my dissertation.

Full Citation:

Monaghan, P. (2006). Dissertation Dust-Up: Film clips and hyperlinks in graduate theses raise tough copyright and open-source issues.The Chronicle of Higher Education. 52: 34. A41. Retrieved on May 2, 2006 from http://chronicle.com/weekly/v52/i34/34a04101.htm.

Link: The Chronicle: 4/28/2006: Digital Dissertation Dust-Up.

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."

[...]

[At the time I was working on my multi-media, native hypertext dissertation (The Ballad of the Internet Nutball: The Xenaverse in Cyberspace), I had to deal with a similar issue with fair use and the rights to material, as it relates to fandom and "textual poaching" (Jenkins). During my data-gathering period, Xena fans who also had web sites in X-Files fandom had two very different experiences with their fannish bastardizations of screenshots and artwork, and of course, fan fiction. Several of my informants with X-Files sites received "cease and desist" orders from Fox, basically forcing them to take down their sites (I have a bit on this skirmish in my diss, here).

Xena fans had a very different kind of relationship with the producers of that show, Renaissance Pictures, and Universal Studios. Because it was a more marginal show, the producers (TPTB) were regarded as friendly parts of the online community for the most part, and Universal saw the fan sites more as free publicity that the show wouldn't have gotten otherwise. All fan sites in the Xenaverse carried standard disclaimers about fair use, and as I wove my dissertation into that community, I used many of the same materials, and did not hesitate to use the same kind of disclaimers as the fans used.

If I had any doubt on the question, I had also researched and attended academic conference sessions and workshops on the evolving nature of intellectual property (it didn't hurt that my dissertation adviser, David Porush, was an outspoken "copyleftist") , and I was well aware of the protections I had under law for non-profit academic "fair use."

Now if I had a book contract, most of those materials could not be used. But the bigger challenge in converting my nonlinear dissertation into a book was "unweaving" it, which isn't exactly impossible, but the more I worked on it, the more I felt it was a betrayal of the original thought patterns I was advocating.]

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.

[...]

[That is an important issue. The problem is often the "percentage" rule, where the part cited or quoted cannot exceed a certain percentage of the total work. In a collection of words, a quotation is a small part, but what is a percentage of an image? Thorny questions. Video material also has to be chunked up this way, but that is largely for commercial, for-profit "fair use." I'm not aware of the same standards applying to non-profit research and the issue of the shrinking public domain due to increasingly narrow conceptions of intellectual property.

Academics and other researchers find their work limited simply because of Mickey Mouse, and the 800-pound gorilla that is Disney, which has enough power to keep extending Mickey's copyright into perpetuity. As many researchers have noted, the violences done to history at the hands of Mickey Mouse keep adding up, as many other works are lost, deteriorating, losing value, because they fall under the Mickey Mouse copyright restrictions, when many of them would have a quite robust life in the public square, the public domain, and are even too important historically to lose in this way, like the documentary film "Eyes on the Prize."

Those very arbitrary and politically-based decisions that continually shrink the public domain are also part of the reason I have chosen to disregard the literal element of the percentage rules in most of my appropriation of others' material, in the same spirit of the Creative Commons copyright notices.

I'm more interested in the spirit of crediting others for their contributions to the public domain than poaching, but my experience with the non-profit fan uses of material as with Xena also makes me a bit of a poacher as well. Not that I want to deprive anyone of the credit or remuneration that comes with their creative or intellectual property, but I want to overthrow this ridiculous "scarcity" model that counts copies as property, instead of a more distributed, democratized model that gives more weight to influence, and the work's role as a participant in much larger dialogues and conversations.

This point is highlighted especially with the absurd restrictions of firewalls, such as with the Chronicle of Higher Education or the New York Times columnists under TimesSelect. Generally, I'd boycott those sources, because they clearly don't want to have influence or be part of the larger public dialogues. By restricting ACCESS to their work (and don't get me going on the restrictions on academic research journals, which aren't interested in the dissemination of ideas at all, just creating fiefdoms), they deprive the free exchange of ideas from certain ideas, effectively censoring themselves and weakening the knowledge-making that comes out of such public domain dialogues.]

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.

[...]

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 non-text 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."

[...]

[Here's where things get a bit onerous, I think. Those Library of Congress standards are similar to what's being worked out with Google Books and Amazon Pages, and the system is set up to stack the deck in the favor of copyright holders, effectively short-changing the public domain and the contributions to the larger world of ideas, where works gain value when they circulate, when they are distributed, when they belong to all, but are adequately credited. What if Jefferson's "Declaration of Independence" had been behind a firewall? That could have reduced his risk a bit if the British couldn't get at it. But how would those ideas get around? And the "Federalist Papers?" Are works of deep thinking meant only for the elite and insiders, the same way Bell Labs may be rewriting the laws of physics right now, but so anxious to keep their discoveries proprietary, they may never make college or school textbooks?

This is not the knowledge-sharing that was born during the Enlightenment, with dialogue, replicable experiments, and debate. This is learning as alchemy, as secret groups pass books around to hide them from the Inquisition, with special passwords and lodges to allow texts to go forward in time. Science Direct, Taylor and Francis, even TimesSelect and the Chronicle of Higher Education have to acknowledge what kind of knowledge-making and information-sharing they are advocating. They encourage learning, all right, just as alchemists did.]

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).

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."

[...]

So irony of all, in order to find out why the Chronicle of Higher Education was sending all kinds of hits to my dissertation, I had to stand on my head, rub my stomach in a circle, turn around three times, and spit, and eventually I found a way to get access to an article that folks in every other university office have lying on coffee tables. If I were a purist, I suppose I'd refuse to acknowledge it, just as I boycott TimesSelect columnists in my blogs, because they have chosen to erase themselves from the larger world of influence and dialogue, and instead speak only to the closed magical lodges that keep information so hermetically-sealed and safe.

May 2, 2006 in Citations, Projects | Permalink

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