Rosemary A. Chase George Mason University Libraries 2003 Copyright Issues in Academic Libraries

Rosemary A. ChaseGeorge Mason University Libraries

2003

Copyright Issues in Academic Libraries

Copyright Workshop Copyright Workshop

Course Reserves, ILL, Electronic Resources and

Academic Libraries

What’s Fair Use? & What’s Not?

Presume Presume EVERYTHING EVERYTHING

IS OWNED IS OWNED [copyrighted, patented, [copyrighted, patented,

trademarked] trademarked] by someone.by someone.

Only the Only the ownerowner can cancopycopy

distribute distribute perform perform display display

or or make a derivativemake a derivative work.work.

““FAIR USE”FAIR USE”LETS YOU USE LETS YOU USE

OTHERS’ WORKS…OTHERS’ WORKS…

……BUT NOT BUT NOT VERY MUCH, VERY MUCH,

AND AND NOT NOT

FOR VERY LONG.FOR VERY LONG.

What is Copyright?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 CopyrightBasis for CopyrightA little history…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 CopyrightBasis for Copyright A little more history…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. CopyrightBasis 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: 1710Model for U.S. Constitution, Article 1, Section 8.

Basis for CopyrightBasis for CopyrightConstitution, Article I, Section 8: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...Copyright...

• Work Must Be:

– Original expression

– Fixed in a tangible form

•Begins:

–At the moment original work is fixedExample: lecture notes, email letters,

family photos, family letters, letters to the editor! Anything saved to a disk…

Non-Protected WorksNon-Protected Works--Cannot be CopyrightedCannot be Copyrighted

• Facts• Titles• Names• Short Phrases• Ideas

Public DomainPublic Domain

• Federal Government Works

• Non-Protected Works

• Lost Copyright

• Expired Copyright

• Abandoned Works

Registration & NoticeRegistration & Notice

• Copyright may be registered

• © Notice may be placed on work

• Neither are required in order to be protected

S. 106: Protected Rights of S. 106: Protected Rights of Copyright OwnerCopyright Owner

• Reproduction - making copies

• Derivative Works

• Distribution - distributing copies

• Public Performance

• Public Display

Statutory ExceptionsStatutory 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:S. 107: Limitations on exclusive Limitations on exclusive rights:rights: FAIR USE 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 UseS. 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 UseS. 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 UseS. 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 theseall of these(the famous “four factors”)(the famous “four factors”)

1. Purpose

2. Nature

3. Amount

4. Effect

…must be considered.

Agreement on GuidelinesAgreement 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...The Four Factors and...…Real Life Situations

• Course Reserves: Print & Electronic

• Media Reserves

• Interlibrary Loan

»…Interpreting fair use

Course Reserves and Fair UseCourse 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…PrintCourse 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: ElectronicCourse 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 GUIDELINESCONFU 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-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 ReservesElectronic 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 & CONTUILL & 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 & CONTUILL & 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 IssuesRelated 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 S. 108: Libraries and ArchivesArchives

• 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 108Section 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 ResponsibilitiesYour 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…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 INFRINGEMENTKNOWLEDGE OF INFRINGEMENT IS IRRELEVANT TO YOUR LIABILITYIS IRRELEVANT TO YOUR LIABILITY

KNOWLEDGE OF INFRINGEMENTKNOWLEDGE OF INFRINGEMENT IS IRRELEVANT TO YOUR LIABILITYIS IRRELEVANT TO YOUR LIABILITY

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…Liability Issues…what you need to know (cont.) 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.

Liability Issues…Liability Issues…what you need to know (cont.) what you need to know (cont.)

Library Liaison – To Do ListLibrary 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” LegislationRecent” 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

DMCADMCADigital Millennium Copyright ActDigital Millennium Copyright Act

• What did it change?– Reduced liability for libraries and

technology providers for what their clients do with university equipment

DMCADMCA Digital Millennium Copyright ActDigital Millennium Copyright Act

• What did not change?

Section 107- Fair use was NOT expanded to include digital environment.

DMCADMCADigital Millennium Copyright ActDigital 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…

DMCADMCADigital Millennium Copyright ActDigital Millennium Copyright Act

– STIPULATIONS includeInstitution agent required to register with the

Library of Congress to field complaintsInstitution must post copyright compliance

polilcyAccurate instruction on copyright and

University policy must be offeredPosted notices required on equipment

Where is my fair use?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 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 ActTEACH 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 ActTEACH ActMore GOOD NEWS…– Allows storage

• Retention and access for limited time

– Allows digitizing of analog materials

• Only if not already available in that form

TEACH ActTEACH 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 ACTTEACH 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 ActTEACH 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 What has TEACH ActTEACH Act done for done for Electronic Reserves?Electronic Reserves?

• …nothing. Legislation specifically excludes Electronic Reserves

• We continue to rely on the old CONFU Guidelines.

What should everyone know What should everyone know about copyright?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?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 conclusionIn 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…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 OfficeUniversity Copyright Resources Officehttp://copyright.gmu.edu/http://copyright.gmu.edu/

George Mason University Libraries

703-993-2544

copyright@gmu.edu