Copyright, Fair Use, and Institutional Repositories

Katie FortneyCopyright Policy & Education Officer, CDL

katiefortney@ucop.eduJuly 29, 2013UCSB Library

Today:

1. Copyright: some basic framework

2. Institutional Repositories & Fair Use

3. Articles covered by an OA policy as a particular example

Road by Moyan Brenn CC BY http://www.flickr.com/photos/aigle_dore/5951719653/

1. Copyright

Copyright covers “original works of authorship fixed in any tangible medium of expression…” – 17 U.S.C. § 102

desk by Nina Hale www.ninahale.com CC BY http://www.flickr.com/photos/94693506@N00/384314276/

A copyright owner has an exclusive right to control:

• Reproduction• Distribution• Public

performance and display

• The creation of derivative works

– 17 U.S.C. § 106

All That Love All Those Mistakes, Thomas Hawk CC BY-NC http://www.flickr.com/photos/thomashawk/290555514/

(unless an exception applies)

Like:• §108 – some things

libraries can do• §109 – first sale;

things you can do with stuff you own

• §110 – classroom performance

• §107 – fair use! (more on that one later)

Week 12 ~ Patterns ~ by Nina Matthews CC BY http://www.flickr.com/photos/21560098@N06/8166233559/

Q: Who’s the copyright owner?

A: The author(s).*

(Unless and until ownership is transferred to someone else.**)

*With works made for hire, the employer is deemed the author.

**Like a publisher. Or an heir. Or a purchaser. Or a parent/successor company. Or…

house for sale by owner by Images Money CC BY http://www.flickr.com/photos/59937401@N07/5688027414/

2. Institutional Repositories

IRs “house and provide access to a variety of different kinds of material directly related to their institutions’ activities, including scholarship of faculty and graduate students as well as documentation of institutional histories.”- Code of Best Practices in Fair Use for Academic and Research Libraries

Most works in an IR will be protected by copyright.

The IR is reproducing and distributing them. How is this okay?

1. Permission

2. Fair use

Tiny & Huge by Annie Kavanagh CC BY http://www.flickr.com/photos/spencersbrookfarm/3139409835/

Most works in IRs are there with the permission of the copyright owner…

• Faculty• Students• Staff• University• Publishers

Crowd by James Cridland CC BY http://www.flickr.com/photos/jamescridland/613445810/

…but some things rely on fair use.

i.e., when permission for a use isn’t needed, based on a carefully weighed analysis of four factors:• Purpose of the Use*• Nature of the work

being copied**• Amount of the

copyrighted work being used***

• Effect on the market****

- 17 U.S.C. § 107

Stone balancing! by Giles Turnbull CC BY-NC http://www.flickr.com/photos/gilest/132093750/

You can also collapse those four factors as…

1. Was the use “transformative”?2. Did it use an amount of the

original appropriate to its transformative purpose?

The Art of Repurposing Workshop by Artfully Unforgotten CC BY-NC http://www.flickr.com/photos/artfullyunforgotten/7694050984/

But that’s still not helpful for a lot of us.

Enter: Codes of Best Practices in Fair Use• Common

situations when communities of practice believe a use is fair

Roslyn_cat by Joshin Yamada CC BY http://www.flickr.com/photos/oceanyamaha/186146223/

The Code of Best Practices for Academic & Research Libraries was developed by librarians.

• E-reserves• Preservation

• Digital special collections

• Web archiving• Institutional

repositories• …and more

- arl.org/fairuse

Principle 6

“It is fair use for a library to receive material for its institutional repository, and make deposited works publicly available in unredacted form, including items that contain copyrighted material that is included on the basis of fair use.”organized food bank by InteliusInc CC BY-NC http://www.flickr.com/photos/inteliusgal/6427040045/

But only if you comply with the Limitations

• Make it easy for copyright owners to object, and respond promptly to their objections.

• Educate authors about fair use so they can make informed choices.

• Provide attribution.

Path through the Dunes by William Warby CC BY http://www.flickr.com/photos/wwarby/4859734760/

Optionally, you can also use the Enhancements

• Have a clear policy about appropriate use of quotations, illustrations, etc., in scholarship.

• Provide advice about particular uses on request.

L’s cake by fras1977 CC BY-NC http://www.flickr.com/photos/fras/4541258297/

How much IR content will this help with?

Bits of stuff included as fair use in larger works that authors are depositing, when they own the copyright in the larger work, or have permission to deposit it.

Stone Wall by Randen Peterson CC BY http://www.flickr.com/photos/chefranden/7146433683/

When do you need something else?

• Works created for a much smaller audience (sometimes)

• Whole big works (think about other fair use arguments)

• Included bits where the author signed a permission agreement (probably)

Collapsed railroad train bridge by US Army Corps of Engineers CC BY http://www.flickr.com/photos/usacehq/5905084113/

3. Open Access Policies

Institutional OA Policies create a license in faculty articles

Faculty institution faculty repository (& users)

Cascade by oatsy40 CC BY http://www.flickr.com/photos/oatsy40/8434845889/

You can only give permission for things you control.

Sharing is Caring <3 by FromSandToGlass CC BY http://www.flickr.com/photos/ericabreetoe/5962757367/

Images in faculty articles affected by the OA policy might come from:

• Museums• Image archives• Web searches• Others’ scholarly

articles… anywhere.Some will be used with permission. Others without.

The Industrial Gallery by Birmingham Museum and Art Gallery CC BY-NC http://www.flickr.com/photos/birminghammag/4014209134/

Images included as fair use will generally be fair use.

Fair use in article as published

Fair use in repository(Principle #6)

Waterslide on Carnival Conquest by Calgary Reviews CC BY http://www.flickr.com/photos/calgaryreviews/5776600920/

For images used with permission… it depends.

Read the image

agreement

OA archiving does not

violate the agreement

Treat like any other article – post it!

OA archiving would violate the

agreement

Waive the policy for

that article*

Deposit only for dark

archiving (e.g. in Merritt)

MCS Book Depository by Jonathan Haeber http://www.flickr.com/photos/tunnelbug/3635140550/

*What if the author wants to put an article in eScholarship but is worried

about the included material?

• Instead of getting a waiver, she or he could– Ask for new/more permission for the

incorporated image– Find a different image or a version from a

different source– Deposit a version of the article without the image

• In any case, the policy’s license is only going to apply to what the author has written, not the images.

Fresh produce at the Byward Market by Jamie McCaffrey CC BY http://www.flickr.com/photos/15609463@N03/7578738408/

We should only rely on fair use in good faith, but we

don’t have to be 100% sure.a) Sovereign immunityb) 504(c)(2):

“reasonable grounds”; “employee or agent of a nonprofit educational institution, library, or archives”

Suits of Armor by Chris Waits CC BY http://www.flickr.com/photos/chriswaits/5705697075/

Questions?

Question Mark Cookies 1 by Scott McLeod CC BY http://www.flickr.com/photos/mcleod/7004084680/