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The internet has changed everything. Suddenly, ordinary people can copy others' works with incredible ease, become publishers, and use others' works as the basis for new works, incorporating things here and there. These potential creators and publishers work for or attend our universities so we and they need to understand copyright law. But, if copyright law was hard to understand in the print environment, it now borders on inscrutable because we must identify copyright issues, apply 200 year old law to cutting edge technologies and create guidelines that real people will follow. No small order.
Eventually, these problems will recede into the background once again, because intellectual property and information are becoming much too important to leave in limbo. They are staples of industry, and industry needs more certainty to do business online than academia has been willing to tolerate. Between now and then, however, there is much work to be done to deal with the ambiguities as business models collapse and legal principles crumble.
It is important to work from a comprehensive copyright management policy, one that not only addresses use of others' works involving licensing, fair use and performance rights, but also addresses questions of ownership and copyright management so that we take care to protect and exploit that which we help to create. Failure to take action can result in catastrophic liability. A thoughtful policy that is widely disseminated will go a long way towards establishing the good faith requisite to the most effective defenses available to universities under copyright law.
Click on the tabs below to learn more about considerations for your institution's policies.
By providing internet access and publishing capability, we can be held liable for infringements of faculty and staff, and perhaps even of students (unrelated third parties). It is of the utmost importance to have and follow a policy for addressing allegations of infringement. The Digital Millennium Copyright Act protects us and other internet service providers only if we act strictly in accordance with its requirements. See Library as ISP for more information.
Copyright owners are having considerable success lately pursuing strategies to narrow the scope of fair use, to hold internet service providers liable for the infringements of their customers, let alone their employees, and to make license agreements that practically no one reads legally enforceable. They have also persuaded our legislature to create new rights for users to violate.
However, the internet offers a unique opportunity for universities to take a more active role in the management of our copyright properties, to more efficiently and effectively facilitate our research and educational mission.
Universities must be involved in legislative debate. Since we are both owners and users of copyright works, we have important interests at stake. Our needs are routinely ignored in legislation that is introduced nearly every session of Congress. The direction that amendments to the Copyright Act have taken over the last couple decades make clear that we should be considering right now how to best obtain broad clearances from the rights holders whose works we depend so heavily upon on a daily basis; how to better protect our interests in scholarly works created at our institutions; and how to minimize the risk of university liability for employee and third party infringements in cyberspace.
17 USC Section 201(a) vests ownership of copyright in a work with the author of the work. Section 201(b) provides that the employer or other person for whom a work-for-hire is prepared will be considered the author for copyright purposes. Works-for-hire are works created by employees within the scope of their employment, or by others pursuant to written contract if the work created falls into one of the nine categories set out in the definition of work-for-hire in Section 101.
Universities have for the most part altered the statutory scheme either through tradition or through policies that permit faculty ownership of their scholarly writings and educational materials. It is unclear whether the law would compel the conclusion that faculty writings are works within the scope of employment, but resolving the issue seemed of little consequence until recently. As we will discuss in a moment, this policy has contributed to the escalating prices universities must now pay to buy back the scholarly works their own and federal taxpayer funds helped to create.
The allocation of ownership interests in the end products of university research is just one policy consideration. Today there are more subtly nuanced variations on the once-straightforward theme of ownership of works created on our campuses:
More often than not, the university does not own copyright in the works its faculty and students need to read. In the print world, this means the library must buy books and subscribe to e-books and journals. It also means that universities may need to acquire additional rights as well.
To fully utilize print works, universities may need to:
Regarding our licensed electronic works, universities may have to:
But when is permission required and when does fair use apply? Unfortunately, this question does not have a simple answer. Learning to analyze a use to determine whether it's a fair use does require some effort. There are workable guidelines, but they tend to be more restrictive than sometimes necessary. Nevertheless, they may be preferable to no help at all.
Ultimately, universities must focus upon licensing for the many (perhaps hundreds of thousands of) uses that go beyond fair use. We must learn more about transaction based and subscription licenses, assess their strengths and weaknesses, and know when to exploit each type to most efficiently promote copyright compliance.
We also must provide support for staff who must negotiate license agreements for access to electronic works. If we acquire sufficient access upfront, we may not need additional permissions for the uses that we know we'll need to make of electronic works.
The entire publishing industry is in upheaval, trying to find its way into its own digital future. Along the way, they seem determined to be as aggressive as possible towards some of their most important customers, universities and their libraries. They are actively challenging what they consider to be unauthorized and illegal uses of their works in our course management systems (such as Canvas), our libraries' electronic reserves systems, and on faculty and departmental web servers. They've been encouraged by a success or two and are vigorously pressing what used to be an ambiguity about the law as though it were settled law -- the scope and extent of application of fair use to the delivery of educational course materials within academe. Will we be able to withstand an allegation of infringement?
Our first strategy for complying with copyright law must be educating our faculty, staff and students to be better consumers of copyrighted materials, more responsible in their use of others' works, and careful in their exercise of statutory exemptions.
But we also must make it easier for faculty, staff and students to get permission to make uses of others' works when statutory exemptions do not apply. We must establish quick, easy and reliable links with copyright clearance centers, negotiate subscription licenses where they would be advantageous and acquire access in digital materials that is sufficient to obviate the need for additional permissions to use such licensed electronic information.
So, our compliance strategies should include:
In order to comply with copyright law, we must identify as closely as we can what our future needs will be so our policies meet those needs and not just the needs we have today. It should be clear as well that a policy developed 10 or 20 years ago will not serve us well now.
Understanding the long-term impact of any policy decision is also complicated by the following facts:
Nevertheless, it is time to get started.
There is considerable online help for determining fair use. Just Google "fair use." The charge to administrators, however, is more difficult than that. You must figure out how to get people who need it to look for it, and make it easy to get permission when fair use is not enough for a proposed use. A thoughtful, realistic and widely disseminated copyright policy is the most important first step in this undertaking. Putting information online is a good first step, but it is not enough. The Copyright Crash Course has been online for more than two decades and there is still a need for copyright education on campus.
The easiest thing to understand is that fair use does not cover all our activities. These are examples of the kinds of activities that probably require permissions of some sort on most campuses:
In today's environment, institutions are responsible for the copying our employees do; thus, this copying is "institutional copying." Most people would agree that fair use is insufficient to cover all the copying that a university user might need to perform to fully utilize library materials. Our potential liability should give us all the incentive we need to address these issues directly.
The premise of both transactional and institutional licensing is that universities need permission to use works beyond fair use and the rights they acquire with access. This premise is often true in today's digital environment and that is why we will discuss these licenses.
In a fully digital library, the need for these "additional" permissions has diminished, but it will never go away completely. Even if we properly license whole databases of information for our patrons, there will be works the library may prefer to acquire as-needed (through interlibrary loan or by document delivery) rather than license them upfront. Thus, libraries likely will need both comprehensive access licenses and some form of transactional or institutional licensing for additional permissions even into the digital future.
Transactional licenses allows us to license permission as needed, one transaction at a time. It requires that we establish relationships with the Copyright Clearance Center, and work harder to educate and inform students and employees of their rights and responsibilities under copyright law so they know when to ask for permission.
Transactional licensing lowers our risk of lawsuits, but it does not eliminate it entirely for two reasons:
The current instability in the scope of fair use exacerbates these risks and requires that we devote more attention to educational efforts. However, these risks should diminish as comprehensive licensing and subscription licensing opportunities increase.
In 2007, the Copyright Clearance Center (CCC) introduced the first generally available institutional annual license for universities. Institutional licensing could help us comply with copyright law, especially where a license covers a broad range of copying types, such as reserve and research copies, administrative copies, and other rights including rights to create, display and transmit digital copies and to make print copies from digital works. The CCC indicates that it takes journal and database subscriptions into account in a rough way by providing lower per student fees for large research institutions that most likely license far more content than smaller colleges.
Most institutions will likely rely on fair use for some or all uses that are not covered by the scope of an institutional annual license (for example, for publishers' materials that are not included), so even with such a license we will be exposed to some risk regarding our liability for the quality of fair use determinations.
Although institutional licensing proposals usually include an offer by the licensor to indemnify participating universities against suits from publishers, such an indemnity would not cover uses outside the license - the fair uses exempted from its terms. Thus, the more an institutional license covers, the better, because any remaining vulnerability to suit significantly diminishes the value of the license.
Many are concerned that we risk the erosion of the scope of fair use if we sign institutional licenses. The fear revolves around two points: For any materials included in a license, whether the use might have been fair or not becomes a moot point. Thus, we don't "exercise" our right, and if we don't use it, we'll lose it. The other concern is that only large institutions will be able to afford the subscription prices leaving the smaller, poorer schools on their own to defend fair use, which, of course, they can't afford to do any more than they can afford to subscribe.
I am skeptical of both arguments because the evidence I see in the court cases that have addressed the kinds of systematic, high-volume copying and distribution that combined e-reserves and course websites constitute (for example, the Texaco, Kinko's and Michigan Document Services cases), suggests that in the presence of a mature, efficient permissions market, a plea to characterize such uses as fair use will not fare well. Thus, it is questionable that the courts would agree we have a "fair use" to lose in this context where we are facilitating a large number of uses.
That is not to say that other types of fair use are similarly threatened. On the contrary, creative, transformative uses are gaining strength in the courts. Google's use of images in search engines and a publisher's use of small images of posters from Grateful Dead concerts provide two examples where courts upheld fair use. Online access to course materials is not likely to qualify as creative and transformative however, especially given its duplicative nature (simply making copies) in the face of the availability of a permissions market for just these kinds of copies.
So long as universities use others' works, they are bound to pay the owners their price. To the extent universities can retain the right to publicly archive faculty-authored scholarly works, they contribute the the lowering of costs of both access and use. It's possible that online publishing could drastically alter the dynamic among authors, publishers and consumers of scholarly works. Users want wide, affordable access and publishers and authors want reasonable remuneration. Since the university community includes authors, publishers and users under the same roof, we ought to be able to take advantage of this situation.
The internet offers a unique opportunity to the university community to create publishing alternatives, transact business with more user-friendly publishers, and publish its works in fields dominated by the most problematic, over-priced publications with publishers who are a part of our community or who are in any event willing to deal with users in a reasonable manner. We should capitalize on the strength we have naturally because we are all part of the same enterprise.
The web of interdependencies among universities, their faculty members, libraries and publishers may be rewoven by the process of adapting our policies to the realities of the electronic world, but it will not disappear. To avoid harming the relationship between libraries and university presses, or the relationship between universities and for-profit publishers, we must focus on the overall goal of facilitating educational objectives, including but not limited to facilitating scholarly communication, rather than on preserving traditional roles and institutions. We must find solutions wherein our libraries, authors and presses can be partners rather than adversaries.
Universities manage risks every day because life entails taking chances. We can't eliminate all risk. We have to live with a certain level of risk and we know it. So it is with copyright. Look at your budget to see how high a priority copyright risk management is for your institution. Actually, the chances are, it's not even in the budget. At least not as a line item. The costs of copyright risk management are hidden and scattered all around your budget. Your license with Microsoft for access to the Office suite for your students, faculty and staff is copyright risk management. Your staff and technical infrastructure for responding to Digital Millennium Copyright Act (DMCA) takedown notices of infringing works found somewhere on your network (probably on a student's computer connected to the residential network) are also risk management. Your licenses to databases of art history and architecture images are risk management. Your legal review of software and database contracts to be sure that they don't create liability for your institution for the infringements of those who use or access the software or database content, that's risk management. Your staff and technical infrastructure for assessing which of your faculty's thousands of course readings require permission each semester, and which are licensed or are fair use, and getting and paying for needed permissions, is risk management. All of this is expensive, and I've just scratched the surface. According to the RIAA, the MPAA, and the Association of American Publishers (AAP), we're not doing enough to protect their interests. All of them are actively pursuing their customers, our students, but they are also pursuing universities and Congress, to get us to do more.
Until they figure out how to replace the revenues they are losing or will lose as consumers turn away from products they no longer desire, these industries are going to continue to pressure us to help them forestall the inevitable. If you have someone on your campus who is responsible for dealing with these issues, you're fortunate. Most campuses do not. Thankfully, there are many resources available on the web to help those just starting out. I offer some below.
This Crash Course page describes an approach I have recommended for years -- that we provide guidance about fair use, license frequently used resources comprehensively (database access), and make it easy to get permission when necessary, among other steps.
This Crash Course page focuses on the steps needed to create a truly integrated course materials delivery system, one that enables institutional payment when permission is required by law, but that also takes full advantage of the library's digital database resources, materials available freely on the public web, and fair use.
The Electronic Freedom Foundation (EFF) reports periodic studies on the music industry's efforts to enforce its rights, the toll this sometimes takes on individuals who are sued, as well as the question of whether the results obtained are worth the cost, and makes recommendations regarding approaches other than litigation.
The best copyright risk management strategy is to hire someone whose job it is to set policy on this issue with the authority to bring the need for implementation action to the table at budget time. There is no way to get around the fact that this particular risk costs a lot to manage it well.
The barriers to providing access to online course materials in ways that easily enable compliance with copyright law are significant and complex. There are operational impediments: institutions that attempt to implement digital distribution systems will probably need to allocate more technological resources or more human resources, but probably both, to solving the problems they will encounter. Further, legal compliance in this context will likely require additional royalty payments to copyright owners for the use of their materials. Even more basically, simple lack of awareness creates a barrier to success: most campus administrators are not familiar with the scope of the compliance problem or its seriousness. Currently, a few individuals within the libraries are likely to fully understand the problems, but unfortunately libraries cannot address them acting alone. Finally, in addition to legal, technological, human resource, financial and awareness hurdles, evolving business models in the publishing community raise the possibility that systems devised today might be obsolete tomorrow. This article briefly discusses all of these aspects of the digital distribution system.
Although there is disagreement about the extent to which one may rely on fair use to justify providing course materials without permission, suffice it to say that the idea that all uses are fair is unsupportable. Thus, if some uses require permission, there exists the need for a copyright-compliant system as a starting point for the rest of the discussion. Assuming we acknowledge the need to have a system in place that enables us to pay permission fees as needed, this article examines the institutional barriers to implementing such a system.
An ideal system would allow faculty members to identify required and recommended readings and post them themselves or delegate posting; those readings would be “cleared” if necessary (permission to duplicate and distribute would be obtained when needed, but not otherwise); students would access the materials through their course management systems or as directed by their professors; and the whole process would be repeated each semester.
Many aspects of the university environment and the evolving publishing industry make achieving the goal of a compliant system difficult, if not impossible. Following is an outline describing five broad problems that significantly impede implementation.
Today only a fraction of the materials used each semester passes through any kind of gatekeeper, such as a library reserve system or course pack operation, because all faculty members have the capacity to post their own readings within their course management systems. The magnitude of the problem should be clear. Addressing the problem of copyright compliance involves changing an entire culture, not just a few individuals’ activities.
Thus, establishing campus copyright offices centrally, or at college or departmental levels could be especially helpful because of the nature of the tasks required to implement a compliant system. One or more centralized offices might be further justified because of the nature and volume of copyright questions arising on campuses today. Copyright compliance is part of many projects underway at our campuses. For example, institutions are filling digital repositories with materials whose duplication and distribution may require permission, so the same processes we identify and recommendations we might make for online course materials will have some application to other projects on campus.
Most importantly, we must recognize that copyright compliance is not a library problem. It is a university problem. And it needs a university solution.
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