Transcript Copyright Issues in Academic Libraries Rosemary A. Chase George Mason University Libraries Copyright Workshop Course Reserves, ILL, Electronic Resources and Academic Libraries What’s Fair Use? & What’s Not?

Copyright Issues
in Academic Libraries
Rosemary A. Chase
George Mason
University Libraries
2003
Copyright Workshop
Course Reserves, ILL,
Electronic Resources and
Academic Libraries
What’s Fair Use?
& What’s Not?
Presume
EVERYTHING
IS OWNED
[copyrighted, patented,
trademarked]
by someone.
Only the owner can
copy
distribute
perform
display
or make a derivative
work.
“FAIR USE”
LETS YOU USE
OTHERS’ WORKS…
…BUT NOT
VERY MUCH,
AND
NOT
FOR VERY LONG.
What is Copyright?
Copyright laws grant exclusive rights to the
owners of an original work such as:
– Literary… musical… artistic…
A set of EXCLUSIVE
RIGHTS
Basis for Copyright
A little history…
• “To every cow, her calf.” An Irish king in
settling property rights in a manuscript.
• In the mid - 15th century with the
invention of the printing press, laws
were passed in London to control the
presses – and what was printed –
Authors lose rights at first printing…
Basis for Copyright
A little more history…
• By 1694, these same printing
institutions wanted Parliament to grant
them rights in perpetuity…so,
• between the 16th and 17th centuries,
controlling print content became
control of printing.
Basis for U.S. Copyright
• In the early 18th century, authors are again
considered –
They are given a 14 year exclusive term and
the opportunity to renew for an additional
14 years, if they are still living…
Statute of Anne: 1710
Model for U.S. Constitution, Article 1, Section 8.
Basis for Copyright
Constitution, Article I, Section 8:
• “The Congress shall have Power…To
promote the Progress of Science and useful
Arts, by securing for limited Time to
Authors and Inventors the exclusive Right
to their respective Writings and
Discoveries.”
• Title 17 of U.S. Code - Federal Copyright
Law
Copyright...
• Work Must Be:
– Original expression
– Fixed in a tangible form
•Begins:
–At the moment original work is fixed
Example: lecture notes, email letters,
family photos, family letters, letters to the
editor! Anything saved to a disk…
Non-Protected Works
-Cannot be Copyrighted
•
•
•
•
•
Facts
Titles
Names
Short Phrases
Ideas
Public Domain
•
•
•
•
•
Federal Government Works
Non-Protected Works
Lost Copyright
Expired Copyright
Abandoned Works
Registration & Notice
• Copyright may be registered
• © Notice may be placed on work
• Neither are required in order to
be protected
S. 106: Protected Rights of
Copyright Owner
•
•
•
•
•
Reproduction - making copies
Derivative Works
Distribution - distributing copies
Public Performance
Public Display
Statutory Exceptions
Limitations on Exclusive Rights:
• Fair Use – section 107
• Reproductions by Libraries and Archives
– section 108
• Exemptions of certain performances and
displays – section 110(2)
S. 107: Limitations on exclusive
rights: FAIR USE
“Notwithstanding the provisions of
section 106, the fair use of a copyright
work, including such use by
reproduction in copies or phonorecords
or by any other means specified by that
section, …
S. 107: Fair Use
…for purposes such as:
– criticism, comment, news reporting
– teaching (including multiple copies for
classroom use)
– scholarship or research
…is not an infringement of copyright.
S. 107: Fair Use
“In determining whether the use made
of a work in any particular case is a
fair use the factors to be considered
shall include-”
S. 107: Fair Use
• Purpose/Character of Use - commercial or
nonprofit educational?
• Nature of Work - factual or fiction?
• Amount and Substantiality - 10%??
• Effect of use on Market or Value
– All FOUR FACTORS are EQUAL.
…all of these
(the famous “four factors”)
1. Purpose
2. Nature
3. Amount
4. Effect
…must be considered.
Agreement on Guidelines
• From the House Report which accompanied
the Copyright Act of 1976 –
• Only considered contemporary technology
– i.e. photocopies
• The Guidelines (included in your handouts)
give examples, definitions and prohibitions.
The Four Factors and...
…Real Life Situations
• Course Reserves: Print & Electronic
• Media Reserves
• Interlibrary Loan
»…Interpreting fair use
Course Reserves and Fair Use
• The Agreement on Guidelines applies to
print reserves.
• Permissions required when fair use cannot
be applied.
• Copyright Statement on Reserve Request
Form must be present.
Course Reserves…Print
• Fair Use applies first semester only.
• Copyrighted materials in Retail/Photo copied
Course Packs may be placed on reserve, but not
without paying royalties.
• Prints of full text articles from the web cannot be
copied for print or electronic reserves (except in
“emergency”)
• Prints of graphics from web site cannot be copied
for print or electronic reserves, (except in
“emergency”.
Course Reserves: Electronic
• The Agreement on Guidelines does not
address digital concepts or applications…
• CONFU – Conference on Fair Use
developed sets of guidelines for uses not
addressed in the House Report.
• Electronic Reserves guidelines were not
widely accepted but it’s a place to start…
CONFU GUIDELINES
Fair use in
Electronic Reserve Systems
Contingent on these limitations:
• SCOPE OF MATERIAL
• NOTICES AND ATTRIBUTIONS
• ACCESS AND USE
• STORAGE AND REUSE
-Electronic Reserves
Practical applications of CONFU
• Documents are accessible only by faculty name
and course
• Access is limited to currently enrolled students
and faculty
• Password is assigned by library staff to each class
• Faculty may LINK to electronic library reserves
from their department pages or personal pages
Electronic Reserves
• The first page of each reading/article must have a
full bibliographic citation.
• DMCA requirement: A copyright notice must
appear on the first page of each document to
accompany the complete citation (replaces the
generic stamp used for so many years: “This
material may be protected by copyright law, Title
17, U.S. Code.”)
ILL & CONTU
• National Commission on New Technological Uses
of Copyrighted Works – reported in 1978 and
provided guidelines for libraries and copyright
proprietors on acceptable amounts of “systematic
reproduction.”
• Such requests should not be made in “such
aggregate quantities as to substitute for a
subscription to or purchase of” copyrighted works.
ILL & CONTU
• Guidelines apply only to requests for journals
dated within five years of the request (recent)…
• When ILL requests for one journal title exceed
five in one year, royalties should be paid.
– = “Suggestion of Five”
• Records of ILL requests should be maintained for
three years.
• http://utsystem.edu/OGC/IntellectualProperty/illconfu.htm
Related Issues
• License Agreements for databases
– Know how to retrieve this information
when you need it
– Most license agreements are negotiated
according to patron base
• Links to full text articles are always
preferable to rescanning on a new web page
or into electronic reserves …***
S. 108: Libraries and
Archives
• Library must be open to the public
• No commercial purpose involved
• No systematic reproduction or
distribution
• Each copy must bear notice of copyright
• Private study, scholarship or research
Section 108
• Unpublished works may only be copied for
preservation or replacement AND, ONLY if
the library or archives owns the item
• No limits on LENDING unless it would
substitute for a subscription to or purchase
of such work
Your Responsibilities
• As University Library personnel, it is your
responsibility to:
– Inform your patrons of the above
restrictions
– Instruct your patrons on proper attribution,
acknowledgment and citation on each
reading
– Resist the temptation to turn a blind eye to
the portion limitations and systematic abuse
Liability Issues…
3 Types of Infringement
• Direct infringement - knowledge of infringement
• Contributory infringement
– you must either have knowledge, i.e. faculty directed
– or you must materially contribute, i.e. university equipment
used
• Innocent infringement - very rare on a university campus
– Staff (button pusher) responsibility
KNOWLEDGE OF INFRINGEMENT
IS IRRELEVANT TO YOUR LIABILITY
Liability Issues…
what you need to know (cont.)
Kinko’s Case
• The added damages in the Kinko’s case were
NOT based on financial loss to the publishers.
• “Kinko’s had failed to instruct its employees in
the pertinent aspects of copyright law…[so
that] substantial damages are necessary to
deter Kinko’s future infringements.” P. 625,
Ginsburg et al.
Liability Issues…
what you need to know (cont.)
• You cannot be “directed by a higher authority” to
do anything that you suspect would be an
infringement.
• Intent to infringe is NOT required, to be found
liable.
• Policy protects the institution and its faculty only
if the faculty have followed policy.
Library Liaison – To Do List
• Inform patrons about their fair use rights and
limits – Remember to tell them the good news first ie.
What they CAN do.
• Call your Copyright Office with questions.
• Send unhappy (belligerent) patrons to the
University Copyright Officer (for a shakedown)
and keep lists of difficulties for discussion.
“Recent” Legislation
• 1997 - jail time was added for willful
infringement
• Sonny Bono - Term Extension - 20 years added
protection
• Digital Millenium Copyright Act passed into
law, October 1998
• TEACH Act – November 2002
DMCA
Digital Millennium Copyright Act
• What did it change?
– Reduced liability for libraries and
technology providers for what their
clients do with university equipment
DMCA
Digital Millennium Copyright Act
• What did not change?
Section 107- Fair use was NOT
expanded to include digital environment.
DMCA
Digital Millennium Copyright Act
• Why should I be informed about the
DMCA?
– When our campus receives “cease & desist”
notices based on alleged infringement found on
Mason’s servers, subpoenas for names may not
be far behind…
– DMCA’s offer of reduced liability has
strings attached…
DMCA
Digital Millennium Copyright Act
– STIPULATIONS include
Institution agent required to register with the
Library of Congress to field complaints
Institution must post copyright compliance
polilcy
Accurate instruction on copyright and
University policy must be offered
Posted notices required on equipment
Where is my fair use?
• TEACH Act – signed November
2002
• acknowledges fair use for distance
learning – and other avenues for
online publishing in non-profit
education…
TEACH Act
 Alters Section 110(2) to include Distance
Education and digital transmissions in addition
to “closed-circuit” T.V.
 Restrictions include:
Limiting access to enrolled students
Providing Technology measures to prevent
retention of the work in accessible form.
TEACH Act
• The GOOD NEWS
– Expands allowed works
• Display/performance of almost all
types
• Quantity limitations
– Expands receiving locations
• All locations – not just closed-circuit
T.V.
TEACH Act
More GOOD NEWS…
– Allows storage
• Retention and access for limited
time
– Allows digitizing of analog materials
• Only if not already available in
that form
TEACH Act
• The BAD NEWS
– Law still based on “mediated instructional activities”
– Institution must impose restrictions on access
– Encourages increased centralization of Distance
Learning course design and implementation
• …which may lead to increased content monitoring
• Raising issues of academic freedom
– Not the same broad rights as “face to face” classroom
allowances
TEACH ACT
For Instructors…
• What’s allowed
– “reasonable and limited portions” of dramatic
or non dramatic literary and musical works, “in
an amount comparable to that which is typically
displayed in the course of a live classroom
session.”
TEACH Act
For Instructors
• What’s off limits for digitization
– Anything marketed in that format
– Anything “not lawfully made and acquired”
under U.S. Copyright Act.
What has TEACH Act done for
Electronic Reserves?
• …nothing. Legislation specifically
excludes Electronic Reserves
• We continue to rely on the old
CONFU Guidelines.
What should everyone know
about copyright?
• Work is protected from the moment the pen meets
the paper.
• No registration with the Library of Congress is
required for protection.
• No “” is required.
• YOU are a copyright owner.
• Fair use is determined on a
case by case basis…
…Who decides what’s fair?
• Usually case law helps to decide. Unfortunately,
there is no case law involving libraries to help
library personnel develop clear policies or even
guidelines.
• The Agreement on Guidelines from the House
Report on the Copyright Act of 1976 for print,
CONTU for ILL, and CONFU guidelines
(although not widely accepted) are helping many
to develop safe harbors for academic uses.
In conclusion
• We are not police officers, but we do have
responsibilities and should take them seriously.
• Always sympathize with the perturbed instructor.
“I know this is very frustrating, especially at this
time of year…”
• Remember: These are not your personal rules.
You are only doing as instructed in order to protect
your library and your university.
In a nutshell…
Educational purpose
– does NOT equal FAIR USE.
10% IS NOT ALWAYS FAIR USE.
OUT-OF-PRINT does NOT mean
out-of -COPYRIGHT.
WWW is NOT public domain.
University Copyright Resources Office
http://copyright.gmu.edu/
George Mason University Libraries
703-993-2544
[email protected]