COPYRIGHT CRASH COURSE
The Copyright Crash Course was created by Georgia Harper and is currently maintained by UT Libraries. The Course is arranged into several sections that allow users to explore certain areas of copyright law individually or as a group. The Course was originally created with faculty in mind, but can be used by anyone who is interested in understanding and managing their copyrights.
If you need to take the Crash Course tutorial, click here.
Version 1 of the Copyright Crash Course is available via Texas ScholarWorks. You are using Version 2. The differences in Version 2 deal with the migration to a different online format and updates to links. The main content of the course has stayed the same.
This work is licensed under a Creative Commons Attribution 4.0 International License.
Proper attribution is to the Copyright Crash Course and Georgia Harper. http://doi.org/10.15781/T24J09X6J
Not too long ago, the only familiarity most of us had with copyright was the copyright notice inside the books we read. Most faculty members would have been aware of assigning a copyright to a publisher, but this was typically an inconsequential act. Today copyright has complicated ramifications throughout academic life.
You probably have an intuitive understanding of copyright's importance in the creation and distribution of creative works -- books, journal articles, electronic publications, music, movies, software, artworks, sculpture. And you probably are aware that when you make and distribute copies of others' works to your students, or to research colleagues, it may be a fair use (and may not, as that's the problem with fair use -- it's not clearcut). And most of us by now know that massive public distribution of copyrighted works without the owners' permission is illegal. But these uses barely dip a toe in the waters.
The role of copyright in the flow of research is undergoing dramatic and exciting change. The options for scholarly communication have never been broader or more effective. You'll find discussion of copyright woven all through important aspects of research and teaching, such as:
Copyright enables us and it throws stumbling blocks in our path. If you take the time to learn a little bit about it, you can exploit its benefits and avoid its pitfalls. I invite you to explore the Copyright Crash Course.
Ownership can be complicated. Some categories of works that used to be distinct and about which there were few issues of ownership may now be merged into a single work.
Other issues arise because of collaboration. Complications can arise in the following circumstances:
These and other similar situations usually involve:
In order to be joint authors of a work, each person must:
The best way to sort out joint ownership is through discussion and agreement at the start of a project. For example, a blog and its commentary present potential joint contributors with opportunities to create collaborative works. One way the blog owner(s) could address ownership and use issue would be to indicate from the start that all contributions are individually owned, no joint work is intended, but all contributions will be publicly licensed under a Creative Commons license that permits the creation of derivative works. This would allow all contributors to use their own and others' contributions in other works. This license could be further refined as commercial or non-commercial.
Finally, some issues arise because institutional resources are scarce and must be allocated wisely and recovered when possible. So, even if an institution is not an owner of a work under the work-for-hire rules, it may have an interest in acquiring rights or recovering its investment in a work created with significant amounts or kinds of institutional resources. If such a work is commercialized, the institution may even wish to share in the royalties. All of these rights should be addressed in a contract.
So, your first task is to identify all the potential authors of a work. An author is someone who contributes copyrightable expression to the work.
What kind of expression is copyrightable?
Copyrightable expression is original authorship, fixed in a tangible medium of expression.
Examples of copyrightable expression, assuming they are original, could be: poetry; prose; software applications; artwork; musical notation; recorded music and/or song; animations; video; a web page; blog posts and comments; architectural drawings; or photographs.
Examples that do not qualify as copyrightable expression: mere facts; exact duplications of public domain works; ideas; systems; works created by employees of the Federal Government; titles and short phrases; logos and slogans; or forms that only collect information (rather than provide information).
Does the author or an employer own the contribution?
The essential questions here include:
Unless the work for hire rules apply, the creators of the work are its authors and owners.
No matter how many collaborators, the work will only be a jointly owned work if the collaborators intended, at the time of creation, that their contributions would be joined into a unified whole and that they would be joint authors. Many times collaborators agree on the first point, but they really haven't thought about the second point. Because intent to be a joint author is subjective, it's quite likely that different collaborators have different ideas about this, if they've thought about it at all. This makes intent an excellent issue to bring up for discussion at the beginning of a project. Often there is a primary author and others whose roles are not as great. It is especially important for primary authors to think about the question of whether the resulting work will be hers alone, or jointly owned with everyone else, and convey her thoughts on the matter early on. It is even better to document such discussions in an agreement of some kind, even a very informal one.
Has the author conveyed away any of his rights?
There are many reasons why an author might transfer all or part of his rights. The first one that comes to most peoples' minds is the transfer of copyright to a publisher as a condition of formal publication. But there are many others.
On the other hand, a research funder may require that the author retain a non-exclusive right to deposit her work to a public-access repository. In such a case, a subsequent transfer of the author's copyright to a publisher would not convey the right that the author had retained. In other words, the publisher would take the copyright, subject to the pre-existing right that the author was required to retain by her research funder. Institutions may exert similar influence over public access to the research results of their faculty by requiring that all papers resulting from research supported by the institution be deposited to an institutional repository. Publishers of such papers would take the copyrights subject to the pre-existing institutional right to deposit the papers to the institutional repository.
Like the result? If not, change it!
Once you know who owns what, you may decide that it's not at all like it should be. If so, you'll need to make some changes to bring about a more desirable result. If you feel you need an assignment of copyright from someone who contributed, to avoid a potential joint authorship issue, the assignment must be in writing and signed by the owner of the copyright. This might also be necessary if a contributor hired someone to write computer code, take photographs or do design work without a contract. Probably neither of them thought the person being hired would own copyright in what he produced, but that's what the law would dictate as the result. It is better to have the contract at the beginning, but it can be fixed after the fact, if the parties are willing. Even if you only need a license (e.g. permission to use a work rather than assignment of all the rights in it), it should be in writing so that the rights to use are clearly stated and documented.
Protecting your work is easy today, arguably too easy. It's protected from the moment you hit the save key on your computer, touch your pencil to paper, brush to canvas, etc. Works are protected from the moment of their fixation in a tangible medium of protection. This means that a grocery list enjoys the full force of federal copyright law for enforcing the owners' rights. Given the purpose of copyright, to encourage the growth of knowledge, it hardly makes sense to provide a period of exclusive use backed up by the full force of the U.S. legal system to insure the optimal production of grocery lists. But that's another issue.
If you want to go the extra mile to make sure you can enforce your rights in federal court, you'll need to register your automatic copyright with the Copyright Office. You can learn all you need to know to register copyrights at the Copyright Office's website. It's cheap and fast, but it's only necessary if you think it likely that you would sue someone to stop an infringement of your rights.
The Copyright Act gives all authors a set of rights that only they may exercise. These include the right to make copies, to prepare derivative works, to publicly distribute, display and perform the work, and in the case of digital sound recordings, to perform the works over a digital network.
With this short set of rights, you would have near perfect control over your works, in fact, too perfect a control. So, the law provides some breathing room so the public can benefit from the increased numbers of works that are the goal of the law. To use those works, the public enjoys rights to display their own copies, to lend them or give them away, even to sell them, and to reproduce parts of the works in certain circumstances, even to reproduce the entire work in some cases, as a fair use. For more information about fair use, read fair use of copyrighted materials.
Your rights go on for your entire lifetime, plus 70 more years.
Your copyright brings the full force of federal law to your side to enforce your rights. The entire judicial system is at your service. For a price. It's really sort of odd that you have these rights whether you want or need them, but that's how it is. Your copyright exists from the moment you create original expression that is fixed in a tangible medium. It's automatic. You needn't register your copyright or even put a notice on your work.
In academe, we usually make our livings in other ways besides selling copies of our creative endeavors. We sometimes have to pay even to get our scholarly papers published. Only rarely do we make royalties from the sales of textbooks. So, really, we don't need quite this robust a set of rights attached to everything we do. We could get by with a much thinner copyright most of the time, one that mainly required that we be acknowledged as the author of our works. That's what matters most to us, typically. But we have the full panoply, whether we need it or not. Unfortunately, the full panoply prevents many important educational and scholarly uses of our works because our readers believe that they have insufficient rights under fair use to use our works. Here's where we all, as authors, can say precisely what we are willing for them to do without our permission, and what our conditions might be. Creative Commons makes this easy. Trim down your beefed-up copyright. The public, educators, and your successors in your discipline wll thank you for it.
Copyrights don't manage themselves well - they sit around and do nothing, except lock up your work practically forever
There are many aspects to effective management of your copyrights, but this article will focus on two of them: the rights you preserve for yourself when you commercialize your work, and the rights you provide for others when you do not. As your rights as a copyright owner explains, your copyright bundle is pretty bloated. It has put on an awful lot of weight in the last 50 years and, for most academics, comprises considerably more rights than we really need or want, rights that actually can interfere with others' uses of your creative efforts.
I'm not referring to uses that you probably wouldn't want others to make -- I'm talking about uses that most people recognize are designed to protect commercial interests, and even for these, the protections have grown far beyond what's needed to provide an incentive for creation or distribution. For example, most books have a productive economic life of about 2 to 7 years, but copyrights go on for approximately 100 years or more! Of course, there are exceptional books that are commercially valuable right up until they enter the public domain, but they constitute a tiny percentage of all works. This mismatch between the functional need for copyright and its depth and breadth has led to the development of remarkable tools that allow authors to trim the copyright of some of its excess girth. In case you are wondering what harm there could be in just leaving the full copyright intact, consider that your successors, years from now, will have to jump through many hoops to access even the most insignificant thing you've ever created (like yesterday's grocery list), to say nothing of an important article you've just finished. More than likely, you'd prefer the article at least were more freely and easily available to those who follow in your footsteps. Read on to find out how it can be.
When you commercialize your works
When you commercialize your works by publishing them with for-profit or non-profit publishers, you can reserve the right to publicly archive your work. From its meager beginnings over 20 years ago, the effort to take advantage of the digital medium to provide greater visibility to academic research results is finally gaining critical mass. Nearly all major publishers, commercial and non-profit, now provide the right to publicly archive by either policy or in their author contracts upon request. Policies are the easiest because they apply to all authors and they don't require that you do anything extra at the time you negotiate your contract. But if your publisher doesn't have a policy, or it doesn't go as far as you would like (not all policies are equally supportive of open access, as it is called), you need only ask for the right to publicly archive. If there are any costs involved, your grant funding or institutional sources often provide resources specifically for this purpose. In fact, some funders now require that any paper published from research supported with grant funds be publicly archived as a condition of the award of the grant.
If you obtain the right to archive and follow through and actually place your article in an agency, discipline, or institutional archive (check with your institution -- it might have services to do this for you), you have insured that many more people will be able to access it than would have otherwise: researchers in other disciplines who may not have access to the commercial venues where you publish, researchers not associated with wealthy libraries, libraries in rural areas, small towns, and less wealthy countries, teachers and students, and members of the public who more than likely paid taxes that supported your research. For more information about how this wider visibility benefits you, your institution, and the public, please read, open access options.
When you don't commercialize your works
What about gray literature, things you put online, presentations you make, early drafts of articles, datasets, images you create, video you shoot, software code you produce, course materials you use to teach, music you compose -- the list could go on for the rest of a good sized paragraph! The amount of creativity we generate that never gets formally published exceeds by thousands of times the amount we do publish. But the same bloated copyright protects these things, practically forever. And the list of things that no one can do with them, except you, is astounding. This is where the golden rule of giving away some rights comes in handy: think about how you like to use others works; give others the rights you yourself think are reasonable. And it's easy. Creative Commons enables you to select a license type and associate it with anything you put online, in any form. If anyone can find it online, your Creative Commons license will quickly and easily tell him or her exactly what freedoms your work comes with, and what your conditions include. This puts your works "in the flow" of teaching and research, not on the rights-quagmire sideline.
The rights-quagmire sideline. That probably needs a little explanation. Copyright's bloated bundle gives you the exclusive rights to make copies (any and all copies), to distribute your work (to the public or to even offer it to the public), to display and perform your work publicly (and that includes displaying it on a computer screen), and the right to make derivative works (any work that incorporates your work or is based upon it, such as adaptations) -- for your lifetime plus 70 additional years. So, to exercise any of those rights that belong exclusively to you, everyone else in the world needs to get your permission. Again, I'm not talking about objectionable uses here -- I'm thinking in terms of downloading a copy, printing it and filing it away somewhere, or in several places, sending it to others in an email, posting it in a course reserve system, attaching it to a presentation or another article, writing a critique of it, or using parts of it to support another argument. Unfortunately, the only authorizations (other than your permission) that the public can rely on are narrowly drawn statutory provisions loaded with conditions, limitations and exclusions (like the TEACH Act), or fair use, which is so vague that most people have no idea what it allows and what it forbids. You have the power to make clear, instantly, what you want to permit, and what you don't want to permit, without anyone having to ask you, ever. In other words, no rights-quaqmire.
Here's an example:
This work is licensed under a Creative Commons Attribution 4.0 International License.
This is the license I have placed on the Copyright Crash Course. It's on the front page, prominently located so that people see it immediately. My license might be different from yours because you can include whatever rights you want to. The Creative Commons website makes that easy. Mine has one major feature identified by a symbol; the right of attribution. I want people to identify me as the Crash Course's author. This is the only right I retain. All the others I'm sharing with the world: the right to make and distribute copies, to display and perform the work publicly, and to create derivative works.
I only had to copy and paste a snippet of code I got from the Creative Commons website into this document to make the license appear. The snippet does three things: it creates this cool little image, it links the reader directly to the Creative Commons site for more details about my license and it makes this document searchable by the Creative Commons search engines so that people who are looking for materials they can be sure they are free to use can easily find it. Very powerful stuff.
The process of changing copyright law to better meet academic needs is not likely to happen in your or my lifetimes -- not even likely to happen in many additional lifetimes. We just don't have the clout to win that fight, with Hollywood, publishers, the software industry and the record companies on the other side, persuading Congress that they need iron-clad protection for nearly eternity to produce a film, a book or a record. But we don't have to change the law. We just have to manage what the law gives us to better serve our own needs, needs that are very different from Hollywood's, Harcourt's and Sony BMG's. So actively manage your copyrights to put your works in the flow where people can find and use them, not on the sidelines forever in a rights-quagmire.
CC licenses provide free tools that let authors, scientists, artists, students and educators (like you) easily mark their creative work with the freedoms they want it to carry. You can use Creative Commons to change your copyright from "all rights reserved" to "some rights reserved." In other words, you can tag it "share," just like I tagged the Crash Course. To learn more about the role these licenses can play in the management of your copyrights, read, your rights as a copyright owner and copyright management.
Open access has come to symbolize the revolution in scholarly publishing, though the revolution goes much deeper and is much wider. Fundamentally, open access means what it says, access to scholarly works in the open -- on the open web. This concept has been around for at least 20 years and had its roots in what became known as the crisis in scholarly publishing - the double-digit inflation in the prices of serials over a decade or so that threatened to completely upend the relationship between books and journals in collection development. At one time many thought moving scholars' research results to freely accessible institutional or disciplinary servers would ultimately bring down the prices of journals, if not eliminate the need for them altogether. This has turned out to be illusory. Publishers have us over a barrel for the most part, and they know it and act accordingly. It is ironic that it's our own content they use to reap their generous profit margins from us, but we're the ones who willingly give over the content and then fork over the money to buy it back. What do we expect normal ordinary for-profit publishers to do? They owe allegiance to their shareholders. Well, enough crying over the spilt milk.
Open access is gaining traction; there are advances on legal fronts; and business models are evolving to acknowledge the inevitability of OA. It only seems a matter of time before the opportunity will be a reality for every single scholar to have his or her work available freely on the web. But that same work will in many cases still be published in exactly the same journal that the scholar might have published in 20 years ago, though it will have gone through a couple of name changes and be owned by one of the 2 or 3 publishers left in the field. Consolidations have been pro forma. This is not to say that there won't be grand departures from the norm also, new modes of scholarly communication and publication, but I think that we'll have quite traditional publishing with us, though not alone on the stage as it is today, for a long time.
As content stops being king, services are likely to take its place. Publishers will compete for subscription dollars based not on what articles they allow you to make available, but on what services they allow you to offer built on the corpus of freely available materials. It will be interesting to see whether competition in services will be more robust (i.e. affecting prices) than competition in scholarly articles is. That was always a big part of the problem with content as king: articles were not fungible. One journal's content could never substitute for another's. Articles are unique, as are their authors. But services are easier to duplicate, except to the degree they are based on patents, but let's not get off on that tangent.
Open access resources
There are so many sources for information on this topic. Thankfully we have the ability to organize a few here and send you on your way. You'll discover others as we will, little by little. But assuming you don't want to become an evangelist, but just want to know the basics so that you can take advantage of the enhanced visibility OA provides, the first stop is SPARC. If you really want to dig into resources, I recommend the Open Access Directory. And, if you'd like more personalized information, your library is probably your best bet - they likely have a librarian or librarians who can talk with you about OA. Libraries have been in the forefront of this revolution for some time. They are being joined today by more and more publishers, who are aware the times are changing. Many libraries offer services to their institutions' faculty to help them take advantage of options their publishers give them to archive their pre- and post-prints, and to negotiate modifications to their contracts that allow for archiving if the publisher does not allow it by policy. You can determine what most publishers' policies are regarding open access at Sherpa's RoMeo site.
Public access requirements
Many funding agencies are now requiring grantees to share the results of their research - both scholarly articles and data. The NIH has required grant recipients to share their articles via PubMed Central since 2008. The White House issued a memo in 2013, directing federal funding agencies to come up with plans for sharing the results of funded research. SPARC has a really great comparison tool that looks at funding agency requirements for data. It's quite likely that researchers applying for grants will have some sort of sharing requirement they need to comply with. Librarians on most college campuses are available to assist researchers that have questions about these requirements.
"Negotiate? I don't want to. I'm just going to sign the damn thing and get on with my life."
Perfectly sensible, about 30 years ago. But no more. READ THE CONTRACT. It takes awhile, yes, but this is important. It's a legally enforceable bunch of words that are supposed to document your deal with the publisher (sort of like you'd document your field work, or an experiment). Does it faithfully do that? What is your deal? Can you describe it in plain English (or Spanish, or French, or whatever)? Is there anything about it that seems to run counter to what you expect? What happens if they fail to publish within a year or so? Do you have the right to publicly archive your final refereed version? If it's a book, do the rights revert to you when the book goes out of print? Do they consider posting your early drafts on a website to be prior publication? Does anything bother you? If yes, say so.
I know some people worry that if they object to terms in the contract, the publisher will reject the paper, but that's absolutely absurd. The publisher might not capitulate to every demand, but reject the paper - NO.
More than likely, if you get beyond that myth, you still won't want to bother with the contract because it's not clear that the cost of just signing is high enough to warrant taking the time and effort to read it and deal with it. And again, that was probably a safe calculus 30 years ago. But it isn't anymore. Go on, at least read the thing. At least do that. There can be things in there that you really will regret later on.
Ok, so you've found something you want to change: change it
It's that easy. You just line through what's there and write what you want instead. You can use the margins if you're reviewing an analog copy, or you can "redline" the document if your are reviewing a copy you can word-process. If it's a locked digital copy (like a locked pdf), just print out a copy and mark on it, digitize your markup and send it back in email. If you encounter a click through license, which is quite common now, email the editor and explain your concerns.
So, what do you want in place of what's there? Just use plain English (or French, etc.) to say what you want. Don't be fancy. Plain language is just as good as legalese. Go ahead, try it. I am confident you'll be pleasantly surprised. I have never had a negotiation disappoint me yet and I *always* negotiate. And I'm prepared to walk away over some things, but I've never had to. Publishers only seem unreasonable on the surface of their contracts (lawyers...). They're really not that bad. At least give it a try.
Maybe you can get some help
Many universities give faculty members help with publishing contracts because the rights that faculty preserve through negotiation, for themselves and sometimes for the institution, benefit the public generally, as explained in managing your copyrights. So check around and see if there is an office on your campus that will help you get a handle on this important job. If not, ask why not? Again, be brave. Let people know what you want.
So what's the library have that Google doesn't?
Not having been born digital myself, I never cease to be amazed when a question occurs to me, I think, "I'll Google it," and a minute later I'm reading an answer within the first couple of links off the results page. Is this pretty incredible or what? I've always been a "let's find out" kind of person, not really content not knowing. Google, Bing, and Yahoo are able to satisfy my curiosity about 99% of the time. When they can't, I usually don't have to care too much about it. A lot of my questions don't really have to be answered.
But I do have some questions that have to be answered, and that aren't so easy because what I need to answer them is buried in the invisible web, the networked mass of information that's not living on the surface, like web pages and blogs, but resides a level below in structured forms like databases. By most estimates, the invisible web exceeds the size of the visible, searchable web by maybe 10 times. Most search engines don't reach these resources directly, but they are there, on the web. Your library probably knows about and has access to millions of dollars worth of databases full of information that might very well contain just what you need to answer a tough question, but you won't know it unless you take the time to learn more about the invisible web.
Ironically, you can Google the words, "invisible web", so you can learn about it, but the actual invisible web can't be accessed that easily. You need specialized search engines in some cases, and in other cases, you need to know how to search smarter. Still, in other cases, if you're smart, you'll get the help of an invisible web specialist, an information specialist. They're not scarce or expensive -- their plentiful and cheap -- in fact they're free. Free for the asking.
The other day I needed to know the answer to what seemed like a simple question, but Google couldn't help me. The question was, "what are the top ranked journals in the field of nursing?" Simple enough, right? Well, the answer is there, it's just not in the visible web. It's in the invisible web, in a database that, if I knew the name of it, I could Google that, and then query the database. But I didn't know the name of it or even that it existed. Simple thing. I needed an invisible web expert. Lucky for me, I know one. Her name is Roxanne Bogucka and she had my answer for me, and I'm not kidding, in about 45 seconds.
Can anyone ask Roxanne a question and will she know the answer to everything? Well, no. She's a subject matter specialist in nursing and nutritional sciences, so those are the invisible web resources she's got a handle on. But there are about 40 others just like her at UT Austin, each with his or her own subject matter area, and you can email them, they do chat, or you can even actually go see them if you want to. They are your librarians. But you already guessed that, didn't you?
So Google to your heart's content, but if you're the least bit curious about what Google and other search engines might be missing that could give you even more to work with, ask an information specialist for a lesson in searching the invisible web. You'll be glad you did, and you can really impress your professor, maybe even your friends, certainly your mom and dad, the next time they act like the visible web is all there is.
Libraries, museums and archives are carrying out small, medium and massive digitization projects and providing public access to the resulting digital collections. Google, Amazon, Yahoo, and Microsoft, among others, are partnering with cultural institutions to increase the pace at which these collections are brought to the public. Foundations are providing needed financial support as well. These projects now number in the millions!
Digitization has unleashed unprecedented interest in our cultural heritage, especially that portion of it residing free and clear, in the public domain. It is, unfortunately, horrifying to realize that while we created this great potential to share and enrich our lives with the public domain of knowledge and creativity, through our legislative process we created laws and pursued policies that effectively sequester most of the works of the 20th century behind nearly impenetrable barriers that will last as long as a century or more. That such a long copyright term is really needed to provide an incentive to authors to create, or even to distributors to distribute, is absurd, and yet, copyright owners were able to convince legislators in most countries of the world to give them the keys to lock up their works, just at a time when their ability to benefit from wider access to and use of the works of others has dramatically increased. Copyright owners should be more realistic about the debt they owe to others: no author creates out of thin air.
Mass digitization has facilitated growing recognition that a policy of overprotection is just as destructive to copyright's aims as one of underprotection. The balance between the two is not static. It changes with the times. We need to change it now. That said, legislative change in most countries is glacial. This forces work-arounds. Many would say that that is a good thing. Whether it is or not, it's all we have in most cases. So what are our work-arounds for the gross mistake of century to century and a half long copyright terms?
First, we are developing better tools to identify those works that actually are in the public domain. The University of Michigan, in partnership with the HathiTrust Digital Library, have reviewed hundreds of thousands of books to help determine copyright status. Because of their efforts there are thousands and thousands of books that we now know are in the public domain and free to use without restrictions.
Second, we are working with other libraries to begin developing best practices to define reasonable searches for copyright owners of different types of works. Much has been written on the subject of orphan works (works that are likely still protected by copyright, but that have no identifiable copyright owner) and what we should do to improve access to them, but the sad fact is that without courage on the parts of collection owners, most orphan works will remain, some of them forever, outside the digital environment. Because by definition they often lack sufficient information to identify their owners, identifying the date on which they would otherwise enter the public domain is also impossible. Even where that date can be determined, it is often a long, long time away. Yet using these works as building blocks for other works would not be opposed in most cases either -- but there's no one to ask. Sound like an easy case for going forward with at least nonprofit uses, but there is something in the other side of the balance: copyright's draconian penalties for infringement. If it turns out a cultural institution was in error in determining that a work was an orphan and the owner turns up and desires to enforce his or her rights, the Copyright Act provides so much deterrent and punishment power that most nonprofits have just said, "no thanks," to the glimmer of what could be done to make the public aware of these works. But exceptions are beginning to show up. The problem of orphan works and determining exactly when a work enters the public domain are closely related. Often we think a work must be so old that it's bound to be public domain, but we can't be certain. Searching for the owner and not finding one helps to reduce the sense that one is risking a lot by digitizing and displaying such a work. And, indeed, in these situations and many others, libraries are beginning to take a chance that with a reasonable search, they can reduce the risk to an acceptable level and display the work with a special notice that advises the public that its appearance on the website is not a guarantee that it can be used for any purpose. At least it is displayed. Others can weigh and balance their own risks, given the goals of their projects. In this way, little by little, the public domain and the orphan works find their way into the light of day.
If you want to get involved in public domain or orphan works projects, there is no shortage of opportunities. Check the Open Library website.
Using materials from the internet
Copyright law governs the use of materials you might find on the internet, just as it governs the use of books, video or music in the analog world. Many people consider copyright law inadequate to deal with the realities of electronic communication today, but it takes time to change the law. This is actually a good thing: it will probably be better if it changes in response to what we learn about these new technologies through experience, rather than in response to special interests that may be desperate to protect their positions in the print world. Unfortunately though, this means that the law is not going to get clearer right away.
Given unclear legal rules, what can we do today with the materials we find on the internet and what are our liabilities for infringing another's copyright?
Some common assumptions are wrong
Many people assume that everything posted on the internet is public domain, probably because our law used to protect published works only if they displayed the proper copyright notice upon publication. The law, however, has changed: neither publication nor a notice of any kind is required to protect works today. Simply putting the fingers to the save key creates a copyrighted work. Once expression is committed to a tangible medium (and computer media is considered tangible), copyright protection is automatic. So, postings of all kinds are protected the same as published printed works.
The saving grace: implied and express licenses to use internet materials
Whenever an author posts anything on the internet, he or she should reasonably expect that it will be read, downloaded, printed out, forwarded, and even used as the basis for other works to some degree. So, just by posting, an author impliedly grants a limited license to use her work in this manner. Think about the rights a newspaper editor has to publish a letter to the editor. The author of the letter probably did not include a line in the letter giving the editor an express permission to publish the letter, but anyone who sends such a letter must be presumed to understand that this is what happens to letters to the editor.
On the other hand, most authors would not think that posting a work automatically gives consent to commercial use of it without permission. This is not part of what one reasonably expects, and so it's not part of the implied license.
The trouble with implied licenses is that their boundaries are vague. Is the right to create derivatives in or out? What about large-scale nonprofit distribution? Implied licenses are vital to the operation of the internet, but they are not as good as express licenses, licenses that spell out in detail what rights the author of a work wants readers, viewers or listeners to have. You can easily give your works an express license by attaching a Creative Commons license to the materials you post online. It's easy and it sends the message that you want your materials to be part of the flow of creativity. No one creates in a vacuum. Just as you build on others' works, others will build on yours. The Copyright Crash Course carries a Creative Commons 4.0 attribution license that allows anyone to copy it for nonprofit purposes or create their own works based on it, so long as the new author attributes her work to the Crash Course.
Liability for posting infringing works
The proliferation of RIAA lawsuits against individuals for peer-to-peer file-sharing make clear that individuals can be liable for their own actions when they copy and distribute others' copyrighted works without permission. Universities and libraries can also be liable for the actions of their employees doing their jobs and possibly students who access the internet through university machines. This means that universities must pay attention to what their network users are doing, take effective measures to inform them about their responsibilities, and promptly investigate complaints of infringement.
The role of fair use
Fair use plays a critical role in the analog world where duplicating technology is cumbersome and authors make money by controlling copies. It balances authors' rights to reasonable compensation with the public's rights to the ideas contained in copyrighted works. It used to be safe to say that reasonable analog educational, research and scholarly uses were fair uses. But this appears to be changing. Those same activities in the digital world are being challenged, mostly because copyright owners have gone to such lengths to make the rights we need to carry out those activities easy to obtain and reasonably priced through collective licensing (the Copyright Clearance Center, in particular). Still, the main cases in this area have involved commercial entities, so their application to nonprofit educators is far from decided. To the extent that fair use is less clearly applicable than it used to be, reliance on fair use for our uses of works we find on the web can be bolstered by reliance on implied and express licenses. Where fair use may be questioned, implied rights may be broader, but an express right to use is best - it's clear and reassuring. It's possible today to search Creative Commons licensed works by license type, or limit your search to be sure that your results include only materials intended for use by educators and students.
What is fair use?
For those of us who would appreciate a clear, crisp answer to that one, we're in luck. The Center for Media and Social Impact at American University is sponsoring development of a growing number off fair use best practices statements that inform a fresh approach to the subject and make it easier than ever to know what's fair. The best practices statements follow recent trends in court decisions in collapsing the fair use statute's four factors into two questions: Is the use you want to make of another's work transformative -- that is, does it add value to and repurpose the work for a new audience -- and is the amount of material you want to use appropriate to achieve your transformative purpose? Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use.
But what if your purpose is not transformative? For example, what if you want to copy several chapters from a textbook for your students to read? Textbooks are created for an educational audience. When we are the intended audience for materials, or when we use a work in the same way that the author intended it to be used when she created it, we are not "repurposing" the work for a new audience. Or what if you are repurposing the work for a new audience and adding value to it by comparing it, critiquing it or otherwise commenting on it, but you want to use a lot more than is really necessary to make your point?
In cases like these we also look at whether the copyright owner makes licenses to use her work available on the open market -- whether there is an efficient and effective way to get a license that lets us do what we want to do. If not, the lack of the kind of license we need to use the materials supports our relying on fair use due to the market's failure to meet our needs. If you would like to know more about a case on the subject of nonprofit educational non-transformative uses, please read the Georgia State case.
Don't forget, however, that fair use exists within a larger context. When we create materials in an educational setting, fair use is part of a web of authority we rely on to use others' works. No one strategy is enough today. Our libraries license millions of dollars' worth of academic resources for our use every year. And there are millions of Creative Commons licensed works available online. We rely on implied licenses to make reasonable academic uses of the works we find freely available on the open web. And we rely on fair use. If you can't find what you want to use among your libraries' offerings, or on the web or through Creative Commons, and your use doesn't qualify as fair use, getting permission is becoming easier every day. The Copyright Clearance Center now offers both transactional (item-by-item) licenses and subscription licenses to colleges and universities. And if you conclude that your use is not fair, but you can't license access to the work, circle back around to fair use again, because the lack of available license weighs in favor of fair use.
There are many other excellent resources online providing guidance for the use of the four fair use factors. See, for example, Columbia University's Fair Use Checklist, UMUC's Copyright and Fair Use in the Classroom, University of Minnesota Libraries' Thinking Through Fair Use, and the many wonderful statements of fair use best practices published by or with the Center for Media and Social Impact, just to name a few.
Please keep in mind that the information presented here is only general information. True legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation. Such is not the case here, so this information must not be relied on as a substitute for obtaining legal advice from a licensed attorney.
You may not need to worry about copyright at all! Many works are not protected, or are already licensed to you or your institution for the uses you wish to make.
Copyright does not protect, and anyone may freely use:
The presence or absence of a copyright notice no longer carries the significance it once did because the law no longer requires a notice. Older works published without a notice may be in the public domain, but for works created after March 1, 1989, absence of a notice means virtually nothing.
Lolly Gasaway and Peter Hirtle explain the rules for determining whether a protected work is in the public domain in two excellent resources. These rules are complex and somewhat hard to describe, partly because they changed many times during the 20th century. At their most basic, excluding anonymous works and works for hire, the rules can be summarized as follows:
Check your library's databases and catalogs. They may already have just what you need.
Creative Commons licensed works
Learn to do effective Creative Commons searches! You may find exactly what you need with the rights you need to use it, available online for free.
Is the work available freely on the open web without an express permissions statement, and therefore covered by an implied license?
All of us who place materials on the open web do so knowing that people will use our works in certain ways (downloading, making personal copies, sending copies to friends, etc.). This is the essence of an implied license. I put my materials out there and even though I don't "expressly" give you the right to do these things, the law assumes that I must have intended to give you the right to do what a reasonable copyright owner would expect the public to do. Most nonprofit, educational uses would likely be within the scope of what people expect when they place materials on the open web. The scope of this license might be the same as or different from fair use, but it's good to know that we have both. Providing attribution should become automatic for you, whenever you use others' works.
Fair use exemption
Courts today tend to collapse the four fair use factors into two questions: Is the use you want to make of another's work transformative -- that is, does it add value to and repurpose the work for a new audience -- and is the amount of material you want to use appropriate to achieve your transformative purpose? If a use is not transformative, or if the amount you want to use goes beyond what you need to make your point, look at market availability. We can start with a few quick suggestions regarding the types of uses that we most commonly make of others' work on campus to implement that approach. Then, we can look more closely at the fair use statute's four factors to see how they can help you for more difficult cases.
Coursepacks, reserves, learning management systems, iTunes U and other platforms for distributing content
For transformative uses, use no more than you need to achieve your transformative purpose.
If you need to use materials in essentially the same way or for the same audience as the author intended, or you use more than necessary to achieve a transformative purpose, limit materials distributed in coursepacks, through reserves, learning management systems and iTunes U by:
Digitizing and providing access to images and audiovisual resources for educational purposes
If the use of the resources is transformative and the amount used is appropriate for the transformative purpose, digitize them and make them available as needed, in accordance with the limitations below. In some cases where a use is transformative and the institution's materials are unique, fair use will support digitizing them and providing public access. But in other cases, digitized materials should be made available in accordance with the limitations below.
If the use is not transformative, for example, in the case of analog slide sets produced and marketed for an educational audience, assess the scope and relevance of licensed digital resources available to meet educator's needs.
Limit access to all images, audio and audiovisual resources, except low resolution small images or short clips, to appropriate audiences such as students enrolled in a class and administrative staff as needed. Terminate access at the end of the class term when appropriate.
Faculty members also may use these works at peer conferences.
Students may download, print when needed and transmit digitized works for personal study and for use in the preparation of academic course assignments and other requirements for degrees, may publicly display images and perform audio and audiovisual works in works prepared for course assignments etc., and may keep works containing them in their portfolios.
Digitizing and using other's works creatively
Students, faculty and staff who wish to use others' works in creative, transformative ways, may incorporate others' works into their own original creations and display and perform the resulting work in connection with or creation of:
While creative uses tend to be transformative, we still must be careful to use no more than needed to achieve the transformative purpose.
Limit copies and distribution.
If the quick guides above are insufficient for your needs, and there is no best practices statement that you feel you can reasonably adapt to your situation, you can try your hand at using the fair use test directly.
With a particular use in mind:
The four fair use factors:
Factor 1: What is the character of the use?
Repurposing a work,
providing a new context,
or otherwise adding value
Uses on the left are examples of transformative purposes that tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle support a determination of fair use, even if there is no transformative purpose. They also add weight to a transformative fair use claim. But even commercial uses can be fair when they involve repurposing of content, or adding value to it, such as but not limited to parody, criticism and commentary.
The uses on the left are strongly transformative when they use a work in a new way and serve a new market from the one the original was intended to serve. For example, using a small image of a poster to illustrate a timeline is transformative; creating a parody of a song is transformative; scholarly criticism that quotes to illustrate a point is transformative; a model's glossy photo used in a news report is transformative. All of these are examples of cases where commercial uses of an appropriate amount of another's work were found to be fair uses.
Factor 2: What is the nature of the work to be used?
|Fact||Mixture of fact & imaginative||Imaginative or highly creative|
Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses described in the middle tend to have little effect on the balance, more or less cancelling out this factor entirely.
Which way is your balance tipping after assessing the first two factors?
Factor 3: How much of the work will you use?
|Small quantity||More than a small amount or the amount needed to accomplish transformative purpose|
|An appropriate amount for a transformative purpose|
This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if you conclude under the first factor that your purpose is transformative, you can use an amount of the work that is appropriate to accomplish that purpose. Notice how nuanced the interaction of these factors can be: A nonprofit transformative use of a whole work might weigh in favor of fair use if the amount is appropriate for the purpose. A commercial use of a whole work would normally weigh significantly against fair use, unless the whole work were the appropriate amount to accomplish that purpose. The examples provided under factor one above illustrate this.
Typically, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. Similarly, commercial publishers normally have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier quotes.
Which way does your balance tip after assessing the first three factors? The answer to this question may be important in the analysis of the fourth factor.
Factor 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions?
|Proposed use is transformative and not merely duplicative (1st factor) and the amount used is appropriate for transformative purpose (3rd factor)||Password protection and/or technological protection||Use is not transformative|
|Proposed use is not transformative, but amount is small||Competes with (takes away sales from) the original|
|Original is out of print or otherwise unavailable||Avoids payment for permission (royalties) in an established market for licenses of the type that you desire|
|Copyright owner is unidentifiable|
|No license of the type you want|
The first three factors affect the analysis of this factor. In most cases, three things come together here: whether your use is transformative; whether the amount you used is appropriate for the transformative purpose; and whether there is an efficient and effective market offering a license to use the work in the way you want to use it.
As always, uses on the left weigh in favor of fair use; those on the right weigh in favor of getting permission. In the middle, uses will reduce the risk associated with relying on fair use when there is a market for that work by protecting the work from possible negative effects of exposure.
In the last 15 years we have seen that courts will tend not to take the availability of licenses into account if the proposed use is transformative and uses an appropriate amount. But if the use is not transformative, the market matters a lot. Please review the Georgia State case to see how non-transformative uses are viewed by our courts.
In summary, transformative uses of appropriate amounts tend to be fair even if there is a license available. Non-transformative uses of materials for which there is a license of the type you need, readily available, require that you use only small parts, and employ protections described in the center of the paradigm above to reduce the risk of harm to the copyright owner.
How do you feel about the balance for your use after consideration of all four factors?
Know the ownership drill
In the good old days, copyright owners were prominently noted in the copyright notice that the law required published works to carry. For works with such a notice, your task is easier (at least you have a starting point). But for many works, figuring out whom to ask can be a major undertaking. Sometimes it is impossible. Nevertheless, if you keep in mind the structure we've set out above, it can provide you with a systematic way to approach the task:
Orphan works and taking risks
If you can't identify authors (or their estates) or business owners, or can't successfully contact them, you probably have an "orphan work." The vast majority of materials in our libraries and archives are in this category today -- works for which a copyright owner cannot be found. These works present serious policy challenges to our copyright law in that they will languish unless a suitable way can be found to allow uses of them that adequately address the rights of copyright owners. Until such time as a legislative solution emerges, those of us who wish to make uses of orphan works must ask ourselves how much risk we are willing to take that an owner we've tried to find and couldn't find will one day come out of the woodwork and exercise the law's harsh remedies to punish us for our uses. Most people are unwilling to take this chance, but some are not. Some are quietly digitizing works that seem very low risk, and providing access to them to the public. Little by little, we edge forward in the dark. For more information about orphan works, please see public domain and orphan works.
Assuming the work you wish to use is protected, the work has not been licensed for your use online, and your use is not a fair use or otherwise exempt from liability for infringement, you need permission. Now what?
Getting permission can be difficult, but in some cases there are steps likely to yield results. The steps will vary depending on the type of work you need to use.
Copyright Clearance Center
If the work is part of a book or a journal article, check the Copyright Clearance Center ("CCC") first. The CCC offers electronic and photocopy based transactional (case-by-case) permission services, as well as a subscription license that covers typical institutional use of works for the classroom of all the works in the license repertoire. Your library or copy center is probably already working with the CCC and should be able to help you. If the work you want to use is registered with the CCC, you can get permission instantly for most materials. If your institution subscribes to the academic license and your work is covered, you don't have to do anything -- your use is covered.
The UK-based Copyright Licensing Agency ("CLA") offers a license for the creation, storage and exploitation of digital versions of existing print works in its repertoire. Canadian agency, Access Copyright, provides licenses for books, magazines, newspapers, and other publications.
At this time, the professional organizations representing image creators cater to commercial interests and may be unfamiliar with educational needs. There are only a few collections specifically devoted to educators. Until more organizations catering to our needs emerge, these are a sampling of your options.
The Author's Registry works with freelance writers and writers' organizations to manage copyright permissions..
If you wish to perform a musical work, your University's license with ASCAP, BMI or SESAC may cover your use. Check with your university's business office.
Want to record and distribute a musical composition that has already been recorded by someone else, or synchronize music with visual images? Check with The Harry Fox Agency, Inc.
Online performances are quite complicated. They involve 3 rights rather than just one: (i) the performance right in the musical composition (see ASCAP, BMI and SESAC above), (ii) the performance right in the sound recording and (iii) the right to duplicate the musical composition (see Harry Fox Agency, above). Each of these rights must be licensed from a separate entity.
The owner of the sound recording is usually the record label. The Recording Industry Association of America (RIAA) represents most major labels and has a good explanation of the statutory license available to certain webcasters. There is also a nonprofit educational radio station exemption that covers webcasts of licensed radio broadcasts. If the statutory license or the nonprofit educational radio station exemption do not apply, you will have to get permission from each record label whose recordings you wish to webcast.
Music Research Consultants' web page contains links to publishers, record labels, music rights agencies, and more. This is a good place to gather contact information. If you know the name of an artist, album, song or label, the All-Music Guide allows you to search for more information and often links directly to the source.
Dramatic Publishing (Plays for young people)
311 Washington St.
Woodstock, IL 60098-3308
Dramatists Play Services, Inc.
440 Park Avenue South
New York, NY 10016
Music Theatre International (Major musicals)
421 W. 54th Street, 2nd Floor
New York, NY 10019
Rodgers and Hammerstein
229 W. 28th St., 11th Floor
New York, NY 10001
Samuel French, Inc.
235 Park Avenue South, Fifth Floor
New York, NY 10003
Toll Free: 866-598-8449
Tams-Witmark Music Library, Inc.
560 Lexington Avenue
New York, NY 10022
If the work you need to use is from a newspaper or other news organization, check the web. Many of the largest news organizations have placed archives of their back issues online.
The Motion Picture Licensing Corporation is an independent copyright licensing service exclusively authorized by major Hollywood motion picture studios and independent producers to grant umbrella licenses to nonprofit groups, businesses, and government organizations to ensure that the public performances of movies comply with the Federal Copyright Act.
Movie Licensing USA, a corporate division of Swank Motion Pictures, Inc., addresses the specific Movie Public Performance Site Licensing needs of schools and public libraries. Movie Licensing USA provides an exclusive license that satisfies the copyright protection needs of the movie producers, while offering a worry-free, liability-free movie license.
Swank Motion Pictures, Inc., is a major movie distributor and a public performance licensing agent in non-theatrical markets where feature entertainment movies are shown. Swank Motion Pictures, Inc., has exclusive distribution arrangements in many markets with most American movie producers for the motion pictures seen in theaters.
FYI: A license dated September 11, 2013, for a public performance license of a documentary cost $99.00. A license dated September 18, 2003, for a one-time showing of the films Ordinary People and A Beautiful Mind cost $331.00 per film for a total cost of $662.00.
Internet Archive has educational public domain films available for download. The films are stored in MPEG format and need to be downloaded to view rather than viewing as streaming video.
You may also need to investigate whether any rights need to be cleared that could be held by the actors, producers, writers, performers, guilds, or composers. Agent representation for living people can be found at WhoRepresents.
One may research film and video copyrights using the database at the Library of Congress. This database lists claimants and copyright ownership to works registered after 1978. To search for works registered before 1978, one must search in the Library of Congress online catalog, LOCIS, or in printed Copyright volumes. Stanford University has created a database containing information from before 1978, but it only includes textual works.
Contacting the Owner
If you know who the author and the publisher are, you can contact them directly. If you do not know who the publisher is, The Literary Marketplace (for books) or Ulrich's Web (for journals) may help you. U.T. Austin's Harry Ransom Center provides extremely helpful information about how to find copyright owners.
Once you know whom to ask, writing a letter, calling or emailing are all appropriate ways to initiate contact.
Sometimes the apparent copyright owner is no longer the real copyright owner. The Copyright Office now provides online searching of some of its registration records and performs professional searches for a fee.
Confirming authority to grant permission
Whenever it is unclear who the owner is, or if the owner is a legal entity of some kind (a business or organization), you should be sure that the person giving you permission is authorized to do so. For example, if you are negotiating with an author, question her about whether she retained copyright or whether she assigned it to her publisher. Sometimes people are unsure. If you are preparing a commercial product, you will need assurances of authority to grant permission because your publisher will expect those assurances from you.
Ideally, your permission should be in writing and should clearly describe the scope of what you are being permitted to do. Vaguely worded permissions may not cover your intended use. Be careful here: describe what you want to do precisely and include alternatives if you are unsure of format. For example, if you are preparing a web-based multimedia product, you may wish to distribute it on physical media under some circumstances.
Permission does not have to be in writing. If you receive oral permission, precisely describe what you want to do, and then document the conversation carefully. It wouldn't hurt to send a confirming letter to the owner, asking him or her to initial it and return it to you if it accurately reflects your agreement.
Difficulty identifying the owner
If the author, creator or publisher is not obvious, such as may be the case for historical photographs, architectural drawings, personal papers or other archival materials, your task may be more difficult. Try the following:
Sometimes, even if you go through all the right steps, you may not figure out whom to ask or the owner may not respond. There truly may be no one who cares about what you do with a particular work, but the bottom line is that no amount of unsuccessful effort eliminates liability for copyright infringement. Copyright protects materials whether the owner cares about protection or not.
While it is possible that a thoroughly documented unsuccessful search for an owner would positively affect the balance of the fair use test under the fourth factor or lessen a damage award even if the court determines that there was an infringement, there are no cases addressing this issue, so it's only a theory. Because your institution is likely to be liable, along with an accused individual, for the infringements of faculty, students and staff, most institutions advise such individuals not to use works for which required permission cannot be obtained. But many institutions are beginning to look at this reaction more carefully, and may determine that at times there are important considerations favoring limited nonprofit educational use of materials that would counterbalance the risk of harm to someone's legal rights.
If an institution makes reasonable, but unsuccessful, efforts to find an owner, it may be willing to assume some risk if the counterbalancing benefit is significant. If it turns out that there is an owner who objects to the use, under the circumstances, taking the materials down most likely will adequately address the owner's interests. If the owner wishes to take things further, well, that's the risk...
Copyright law provides educators with a separate set of rights in addition to fair use, to display (show) and perform (show or play) others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium.
Until recently, however, when the classroom was remote, the law's generous terms for face-to-face teaching in Section 110(1) shrank dramatically in Section 110(2) -- some would say to the vanishing point!
These severe limitations on what could be performed in distance education received lots of attention. In 1998, Congress directed the Copyright Office to prepare a report recommending what should be done to facilitate the use of digital technologies in distance education. The Copyright Office prepared its report and recommended significant changes. The TEACH Act became law in late 2002.
The TEACH Act expands the scope of educators' rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those we have in face-to-face teaching. But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for distance education. For example, as indicated above, an educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom - still images, music of every kind, even movies. There are no limits and no permission required. Under 110(2), however, even as revised and expanded, the same educator would have to pare down some of those materials to show them to distant students or make them available over the internet to face-to-face students. The audiovisual works and dramatic musical works may only be shown as clips -- "reasonable and limited portions," the Act says.
This disparity, coupled with the considerable number of additional limits and conditions imposed by the statute, has lead some educators to conclude that it's more trouble than it's worth to rely on Section 110(2). This statute's complexity provides a new context within which to think about fair use: compared to the many conditions and limits contained in Section 110(2), the four factor fair use test seems, simple and elegant. That's a good thing, because even if we rely on and find 110(2) helpful, fair use will still figure heavily in our exercise of performance rights because putting anything online requires making a copy of it. The TEACH Act authorizes us to digitize works for use in digital distance education, but only to the extent we are authorized to use those works in Section 110(2), and so long as they are not available digitally in a format free from technological protection. So, for example, where 110(2) authorizes the use of movie clips and the available DVDs don't permit ripping (a prerequisite to creating a digital "clip"), you can digitize those parts using an analog tape; but you are not authorized by the TEACH Act to digitize the whole movie. Fair use is almost always going to be the best source of authority for making copies in any context, but especially in conjunction with statutes like 110(2) that give us specific authorization that may not be sufficient in a particular case.
Fair use also remains important because the in-classroom activities (even if the classroom is virtual) the TEACH Act authorizes are a small subset of the uses of electronic resources educators may wish to make. It only covers in class performances and displays, not, for example, digital delivery of supplemental reading, viewing, or listening materials. For those activities, as well as many others, we'll need to continue to rely on fair use. Remember, however, when relying on fair use, the fair use test is sensitive to harm to markets. This means that in general, where there is an established market for permissions, there will often be a narrower scope for fair use. In practical terms, this means that where it's easy to get permission, for example, to put text materials on reserve, our reliance on fair use should be limited. On the other hand, where it's near impossible to get permission, for example, for music and movies where those industries are not yet very responsive to the needs of distance educators, the scope of fair use expands to permit reasonable uses of such materials for both local and remote students. So, fair use will likely be very helpful for using music and movies in the classroom and as supplementary materials. See fair use of copyrighted materials for more information on fair use.
Section 110's role in the balance of interests has always been to permit educators to share works with their students, to show others' works in class. In its exclusion of meaningful rights for digital distance educators, Section 110 was failing to carry its weight, so to speak. It had been, in effect, "written out" of the statute by being obsolete. Now it has been expanded to permit educators to show materials the statute did not cover before; however, new Section 110(2) significantly limits who may display and perform how much of what materials and under what circumstances. The TEACH Act checklist, summarizes the 22 (!) prerequisites. Nevertheless, we may be optimistic that, together with fair use, this new statute will achieve Congress' goal of facilitating the use of digital technologies in distance education.
Section 110(2)'s expanded rights:
Exclusions from coverage
Not everyone, nor every work, is covered. Section 110(2) only applies to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for in-class use in the digital distance education market; works the instructor knows or has reason to believe were not lawfully made or acquired; or textbooks, coursepacks and other materials typically purchased by students individually.
This last exclusion results from the definition of "mediated instructional activities," a key concept within the expanded Section 110(2) meant to limit it to the kinds of materials an instructor would actually incorporate into a class-time lecture. In other words, the TEACH Act covers works an instructor would show or play during class such as movie or music clips, images of artworks in an art history class, or a poetry reading. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. Instructors will have to rely on other rights to post those materials, such as the fair use statute, or get permission.
Authority to make copies:
Finally, a new section was added to the Copyright Act to authorize educators to make the copies necessary to display and perform works in a digital environment. New Section 112(f) (ephemeral recordings) works with Section 110 to permit those authorized to perform and display works under 110 to copy digital works and digitize analog works in order to make authorized displays and performances so long as:
Because of the many limitations, Section 110(2) won't go far enough in many situations; remember that educators still have recourse to fair use to make copies, create derivative works, display and perform works publicly and distribute them to students. So, don't be discouraged by Section 110(2)'s scope and complexity. If it covers what you want to do and you and your institution can comply with all of its conditions and limitations, great! If it does not, you still have the fair use statute.
Ready to use the TEACH Act? Use this handy checklist to see
__ My institution is a nonprofit accredited educational institution or a government agency
__ It has a policy on the use of copyrighted materials
__ It provides accurate information to faculty, students and staff about copyright
__ Its systems will not interfere with technological controls within the materials I want to use
__ The materials I want to use are specifically for students in my class
__ Only those students will have access to the materials
__ The materials will be provided at my direction during the relevant lesson
__ The materials are directly related and of material assistance to my teaching content
__ My class is part of the regular offerings of my institution
__ I will include a notice that the materials are protected by copyright
__ I will use technology that reasonably limits the students' ability to retain or further distribute the materials
__ I will make the materials available to the students only for a period of time that is relevant to the context of the class session
__ I will store the materials on a secure server and transmit them only as permitted by this law
__ I will not make copies other than the one I need to make the transmission
__ The materials are of the proper type and amount the law authorizes
__ The materials are not among those the law specifically excludes from its coverage:
__ If I am using an analog original, I checked before digitizing it to be sure:
Libraries, like individuals, have rights under 17 U.S.C. Section 107 (Section 107) to make fair uses of copyrighted works (1). Most commonly they exercise these rights in one or another form of what used to be called the reserve room.
Reserving works for limited use
Teachers often make supplemental reading assignments that all their students can not complete given normal loan periods. Placing the reading materials on reserve gives each student time-limited access, but sometimes even severe restrictions on the loan period will not guarantee full access. The students need more copies. Faculty members may provide their own copies or ask the library to make or acquire additional copies.
Since the Reserve Room is an extension of the classroom, its copying must conform with fair use principles. There is no part of Section 108 that addresses this kind of copying. Complying with fair use is not an easy task because fair use can be hard to understand. For example, Section 107 explicitly cites the practice of making multiple copies for classroom use as an example of fair use, but the provision also requires the user to consider the famous "four factors" stated in the statute before deciding whether a particular use is fair:
Not very helpful, are they?
Still at one time universities thought they knew what fair use was. Now, however, these commonly held beliefs have been challenged by several lawsuits over the scope of fair use (2). These lawsuits raise serious concerns.
The discussion of reserve room operations that follows (see links below) will rely on a basic assumption: if a faculty member could lawfully prepare coursepacks comprising photocopies of six articles from different periodicals and one chapter from a book without permission (3), those same materials can be placed on reserve, making a more conservative use of the fair use right. Similarly, however, for any set of materials that would not be fair use in a coursepack, we should get permission to make copies for reserve use. In the analyses that follow, we will see how the exercise of this right changes in print, audio, still image, video and electronic multimedia media.
1 17 U.S.C. Section108 (f)(4) (Section 108 generally), which protects certain library reproduction and distribution activities, explicitly preserves any rights libraries may have under Section 107. Fair use rights may be different from and/or more extensive than rights under Section 108.
2 Addison-Wesley Publishers Co., Inc. v. New York University, (settled out of court); Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y. 1991); American Geophysical Union v. Texaco, Inc., 802 F.Supp.1 (S.D.N.Y. 1992); 37 F.3d 881 (2nd Cir. 1994); Princeton University Press v. Michigan Document Services, Inc., 1996 WL 54741 (6th Cir. 1996) [WITHDRAWN]; 1996 FED App. 0357P (6th Cir.). These cases concern faculty prepared "coursepacks" containing supplemental reading materials for students and research copies (Texaco).
3 Discussion in fair use: reserve rooms for print copies explains the basis for this assumption and how such activities on our campuses may be different from the activities of commercial for-profit copy shops. The range of opinion on this issue is broad, however. Some universities advise their on-campus copy centers that coursepacks containing single chapters from books, single articles from journals and no more than a few charts, graphs or illustrations would generally qualify as fair use for the first semester of use by the same professor for the same class. Requests beyond these would require either a more involved fair use analysis or permission from the publisher. Others believe that all reserve uses require permission if it can be easily obtained, for example, from the Copyright Clearance Center. Others believe that substantially all educational uses are fair. For a fuller discussion, see "fair use of copyrighted materials."
How does the statutory fair use test apply to copies made to go on reserve? Does it matter who makes the copies? What should we do with the copies at the end of the semester? How many copies should be made?
The four fair use factors
Well, here we are - confronting the fair use test again. Get comfortable with it. Let's consider a request to place six articles and a book chapter on reserve. Keep these points in mind:
Case-by-case balancing means that every situation, being different, conceivably results in a different outcome. It takes some practice to comfortably predict what a court might conclude in any but the most obvious situation. This imprecision and unpredictability make it difficult to determine what is and what is not a fair use, but the alternative, asking for permission in all but the most obvious cases, or ignoring the need for permission by assuming that all educational use is fair, could prove to be costly choices, either way! So, learning to be more comfortable with the fair use analysis is an important step towards soundly operating a reserve room.
Applying the four fair use factors
Please read using the four factor fair use test before proceeding. It will describe generally how "weighing and balancing" works. Remember, we are analyzing articles and book chapters, each one individually.
As discussed more fully in using the four factor fair use test, a publisher's willingness to license copies or the existence of easy ways to assess and collect royalties is not by itself enough to defeat a fair use defense in a nonprofit setting (4).
Given our example, of the first three factors, only the third factor arguably weighs against a finding of fair use, but in the nonprofit context, and with an amount that is appropriate in light of the intended use, there is ample basis under Sony and Williams for a finding of fair use nonetheless. In considering the fourth factor, the use would have to be described as an otherwise fair use so far, so we could expect that for a first time use at least, a court might disregard potential licensing or permission fees, not permitting them to convert this otherwise fair use into an unfair use. On the other hand, if these same materials were copied over and over and over again, semester after semester, by the same professor for the same course, a court might be more inclined to wish to take those lost revenues into account.
Who makes the copies?
This analysis would be the same whether the library or a faculty member makes the copies. Either would be exercising the same right under the same statute. In effect, the library acts as agent of the faculty member who is an agent of the university. The real issue may be manpower and budget.
What happens to the copies at the end of the semester?
Section 107 does not mention how long a copy may be retained, or whether at some point, a fair use copy ceases to be fair solely because of the passage of time (5). Nevertheless, there is a widespread belief that libraries should not retain a copy longer than one semester.
Not only the Classroom Guidelines (6), but every other set of negotiated guidelines, both old and new, has contained some time limit (7). Thus, even though it may not be logical to infer a time limit on fair use from the statute itself, it appears advisable nonetheless to obtain permission for uses beyond one semester.
Section 108 copies must become the property of the patrons, but Section 107 is silent on the issue of copy ownership (8). It is probably better to consider the faculty member the owner since he or she either brought the copy to the library or the library made the copy at his or her request.
How many copies may be made?
Since up to one copy per student can be made even under the restrictive Classroom Guidelines, assuming an otherwise fair use, almost any reserve request will be comparatively modest. So long as the faculty member has used reasonable judgment in determining the number of copies that are required to allow all students in the class an adequate opportunity to read the reserved materials, requests for multiple copies should not be cause for concern.
2 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (making copies for timeshifting television broadcasts for personal use is not an infringement); Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), affirmed by an equally divided Court, 420 U.S. 376 (1975). But see American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2nd Cir. 1994). The court was analyzing whether copying scholarly articles in their entirety for research purposes was a fair use. Most observers would have thought that copying to facilitate research would give Texaco an advantage under the first factor which would in turn affect the weight given to the third factor. But the court characterized this typical research copying as systematic, institutional and archival, that is, as creating a personal archive of interesting articles for possible future use, and decided that such copying made the first factor weigh against a finding of fair use. Without a favorable finding under the first factor, Texaco got "hung out to dry" on the third and fourth factors as well. The court held that copying entire articles caused the third factor to weigh against fair use. This emphasizes the importance of the interplay between the factors in the analysis.
3 The decision in Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) is generally credited with causing publishers to be more responsive to requests for permission to copy. Jane C. Ginsburg, "Reproduction of Protected Works for University Research or Teaching," 39 J. Copyright Soc'y 181, 210-211 (1992). As further evidence of this trend, the Copyright Clearance Center (CCC) has expanded its services to include electronic reserves and a subscription license, in addition to its transactional license for photocopies.
5 One case that touched on this issue, although tangentially, was Sony. Sony, 464 U.S. 417 (1984). The Sony court discussed "timeshifting" and acknowledged that sometimes copies made for more convenient viewing at another time are retained indefinitely. While indicating that temporary use for the convenience of viewers is fair use, the court did not go so far as to suggest that only temporary uses are fair or to put any time limit on the retention of copies. This recognition that retention occurs coupled with the absence of any specific exclusion of retention from the Court's determination of fair use, may well indicate a tacit acceptance of some amount of retention; however, such tacit acceptance, if reasonably inferred at all, is relatively weak support for the idea that there is no time limit on fair use and it might quickly disappear if the issue were addressed directly as it was in the Texaco case.
The Texaco decision addressed copy retention when it found that research copies for personal files constituted archiving and weighed against fair use (first factor). The implications of this holding for the reserve room are not at all clear because the contexts are so different. On the one hand, reserve room use is qualitatively distinct from building a personal collection of articles that may or may not ever be used, yet reserve room copies retained indefinitely could be characterized as archival either in the hands of the faculty member or the library.
6 The "Classroom Guidelines (see Notes section in link)" are the product of negotiations between representatives of copyright owners and certain educational institutions. They addressed the fact that Section 107 does not give adequate guidance to educational institutions about fair use of copyright material for classroom purposes. Urged by Chairman Kastenmeier, Chairman of the Judiciary Subcommittee, The Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, Authors League of America, Inc., and the Association of American Publishers, Inc. reached this Agreement in 1976 when Congress was considering amendments to the copyright law affecting fair use. Congress included the Agreement in the House Report on the New Copyright Law (H.R. Rep. 94-1476, pages 65-74). Several courts have relied on its provisions in their analyses of copying for classroom purposes. The Association of American Law Schools and the American Association of University Professors, however, did not endorse its provisions and described them as too restrictive in the university setting (H.R. Rep. 94-1476, pages 65-74). Nevertheless, since the Guidelines are included in the House Report on the Copyright Law they have special legal significance. As a part of the legislative history of the 1976 amendments, the Guidelines can be considered in determining the intent of Congress in amending the Copyright Act in 1976.
7 The National Information Infrastructure Task Force Working Group on Intellectual Property Rights in the Electronic Environment convened a Conference on Fair Use ("CONFU"). The ereserve guidelines that resulted from the CONFU process, though not official CONFU guidelines, limit reserve use to one semester.
Stakeholders in the multimedia industry negotiated a set of multimedia educational fair use guidelines that limit the use of faculty and student created multimedia works to 2 years.
Analog audio and video recordings and photographic images
Academic and special libraries still receive occasional requests to reserve audio and video recordings and photographic or slide images similar to the requests described in the discussion of print copies. Although these materials are quickly migrating to digital media in most libraries, it is still of value as a foundation for analysis of electronic reserves to consider a request to reserve analog excerpts from six commercially recorded musical works, a set of architectural slides and a commercial video showing a musical performance.
The audio reserve request probably will involve combining parts of the six works into a single sound recording. Visual image requests often require that slides be made from photographs or other slides. Finally, the audiovisual reserve request would typically involve making a copy of an entire video.
In addition to the exclusive right to make copies, copyright owners also have the exclusive rights to publicly perform and display their works. As with all the exclusive rights, however, these rights are limited. We will address other limitations in addition to fair use that may protect public performances and displays in the library.
Making a master recording
The fair use analysis for copying six musical excerpts is exactly like the analysis for copying six articles. In this case, however, the second factor, the nature of the copyrighted work, will probably weigh against fair use because the work is creative and fanciful rather than factual. Still, with the first factor in favor of fair use, an an amount that is appropriate in light of the intended use, and the favorable effect those two have on consideration of the fourth factors, even though this is a harder case than a print example, it seems reasonable to expect that it would be fair.
Making slides from photographs in a book
The request to make slides from a book is similar to the request to make a master recording. Again, the second factor weighs against a finding of fair use since photographic works are not factually based as are journal articles. But, given an educational use and a modest request (a small number of images to be copied from any one book), this request still should qualify as a fair use.
Making duplicate slides
This kind of request seems more troubling than making slides from photographs in a book for several reasons. Slides are usually images of creative rather than factual works, making the second factor weigh against fair use (as discussed above). Further, a slide is likely to be considered a whole work, not part of something, thus making the third factor weigh against fair use as well. As discussed in connection with print copies, when two out of the first three factors weigh against fair use, the fourth factor can become problematic because its weight can depend upon whether the use is otherwise fair. Even in the nonprofit context, once the second and third factors weigh against a finding of fair use, one must seriously consider the possibility that a court would weigh the fourth factor against a finding of fair use as well. The less clearly fair the use is by the time the court considers the fourth factor, the more likely the court is to take the publisher's "lost revenues" into consideration. As most libraries are aware, slide providers often have policies against duplication and expect that the need for additional slides will be filled with additional orders. Note, however, that if the original slides are no longer available or permission to copy them cannot easily be obtained, the fourth factor tips towards fair use.
Making a copy of an entire video recording
This copying request is difficult for the same reasons as discussed above in duplicating slides. As well as being an entire work, it is a creative work and so the second and third factors weigh against a finding of fair use. That would bring the fourth factor into question, making reliance upon fair use risky, were it not for the fact that permission to make a copy of a movie for nonprofit educational use is nearly impossible to obtain. Especially when we are careful to institute limits on the use of the copied movie, we have a reasonable, if not an overwhelming fair use argument.
Sony, supports this result, as it would be difficult to argue that educators are not permitted under fair use to copy an entire program when individuals have the right to do so purely for entertainment purposes (1). But, the differences in context make it very hard to "apply" Sony to this circumstance; the programs copied in Sony were free broadcasts, not commercially purchased videotapes (or slides). As you might have come to expect by now, it is not at all clear exactly how a court would decide this issue.
Performing the copyrighted work
The right to make a copy is only one of the rights we need to permit students to listen to or watch a music performance, or view slides in the library. The copyright owner has the exclusive right to publicly perform his work, so we must get his permission unless an exemption covers what we want to do. First we ask, Is the performance public? Section 101 of the copyright law says that a performance is public if it is:
One must consider whether the place is public and the size and composition of the audience. For example, if the performance takes place somewhere open to the public, how many and what kind of people attend is not important. By definition it is a public performance. If the public can be excluded, the size and composition of the audience determine the result (3).
Most university libraries may not be open to the public, but they are open to considerably more people than a normal circle of a family and its acquaintances. Thus, the displays and performances that take place in the libraries are public performances.
Even if a performance is a public performance, it still may not be an infringement because the copyright law places limits upon the performance right of copyright owners in Sections 110(1) and (2) (4). Section 110(1) says that public performances that take place in the face-to-face teaching activities of a nonprofit educational institution are not an infringement.
The legislative history of Section(s) 110(1) and (2) (for distance education) indicates that the legislators thought these two exemptions would cover all performances and displays necessary to teach in public institutions. They specifically include libraries as examples of classrooms or areas devoted to systematic instructional activity. Section 110(1) covers live and recorded performances (5); the teacher does not have to be in the same room as the students, only in the same general area. Thus, since our audio selections, slides and videotaped music performance would all qualify under these descriptions for the face-to-face classroom exemption, they can be displayed and performed (watched and listened to) in the library without permission.
In addition, fair use applies to all of the exclusive rights of copyright owners, not just to making copies, so a performance may also be a fair use depending upon the results of weighing the four fair use factors, just as described above for analyzing making copies of copyrighted works. Further, it seems likely that if making a copy of a recording or videotape in a particular instance is a fair use, exercising performance rights needed to utilize the copy should also be a fair use. Similarly, if the right to perform or display is covered by Section 110(1), the right to make a copy required for that permitted display or performance should be a fair use.
Together with course management systems and faculty and departmental web servers, e-reserves as they are called, have all but replaced paper coursepacks on college campuses. The obvious convenience of electronic storage and access makes this medium very attractive. E-reserves can involve all of the rights of the copyright holder discussed in connection with print copies, sound and video recordings and duplication of images, depending upon the work to be reserved. E-reserves will always involve copying, but will also involve at least one and perhaps both the performance rights (public display and/or performance), and a pubic distribution.
With only minor modifications, we could rely on the fair use analyses described for print copies and sound, video recordings and photographic image duplication to make six articles and a chapter from a book, audio, video recordings and photographic images available to students through e-reserves. We will, however, modify our approach to e-reserves somewhat, in recognition of the additional risks to copyright owners' interests that electronic copies create: the ease of further duplication and distribution. As always, the hallmarks of fair use involve adequate protection of the copyright owner's interests. In electronic reserves, this usually means password protected storage; streaming media when practical; and getting permission after first semester use where there's a functional permissions market, as there is for text. It can also mean purchasing licensed materials that are appropriate for your institution, such as image collections.
Guidelines for fair use in the electronic environment
The National Information Infrastructure Task Force Working Group on Intellectual Property Rights established a Conference on Fair Use in the fall of 1994, which met monthly for more than two years. Its purpose was to bring together the interested parties (publishers, authors, libraries, etc.) to negotiate fair use guidelines for the use of materials in a variety of contexts: electronic reserves, use of image archives, interlibrary loan, distance learning and multimedia.
The draft Electronic Reserve Guidelines were not agreed upon widely; nevertheless, they provide a good framework for thinking about what is fair use in the reserve context. As is the case with all guidelines, they are not the law, but only at best, a statement by certain parties about what they believe would be fair use. As such they represent considerable compromise. The Electronic Reserve Guidelines permit us to place small parts of others' works on reserve for one semester without permission. Thereafter, if the same faculty member requests the same materials for the same class, we should get permission. They also require that only students in the class should have access to the materials. These limitations illustrate the kind of consideration given to the copyright owner's interests.
The four factor fair use test also balances the interests of both the users and the owners of copyrighted works. The analyses set forth in the companion articles on print copies and sound and video recordings and photographic image duplication show how fair use achieves balanced results. For example, the easy availability of a license to use a work, or the lack thereof, influences the fourth factor. The scope of fair use is broader for media such as movies, music and images; narrower for text. This scope is implemented in time (the amount of time one may use materials without permission) and in the amount of the materials that can be used. So, continued educational uses of materials for which permission is difficult or impossible to obtain are likely fair uses; continued educational uses of materials for which permission can easily be obtained are less likely fair uses.
One note of caution: Because reserve materials are suggested or required course readings and suggested or required course readings are excepted from the coverage of the provisions of the Digital Millennium Copyright Act ("DMCA") that limit the liability of internet service providers (ISPs), the DMCA ISP provisions do not apply to them. This means that if reserve materials are found to infringe a copyright owner's rights, the library or the University of which it is a part will not be able to take advantage of the special protections set forth in the DMCA and will not have to follow its detailed notice and take-down procedures, but must rely instead on all the other defenses that are available under the rest of the copyright law, including but not limited to fair use and the good faith fair use defense. For more information about the DMCA and ISP liability limitations, please see is your library an internet service provider under the DMCA?
Making copies: fair use
In addition to reliance upon fair use in the reserve room, libraries may also rely on fair use to make copies for patrons in those circumstances not covered by Section 108. Section 108(h) indicates that the copying permitted for patrons does not apply to musical, pictorial, graphic, sculptural and audiovisual works (other than news programs). If a patron requests a copy of a videotape such as the musical performance discussed in images, audio and audiovisual copies in the reserve room, the library will have to decide whether to make the copy as a fair use.
Libraries may also exercise fair use rights for their own benefit, just as individuals might, for example, to make a copy for the library's collection of a work that is unattainable through normal channels. Arguably, a library might even be able to build a special collection, at least partially through copies made pursuant to the fair use statute in those cases where access to original works is limited. As will be discussed later, the holding in the Texaco case may affect this right, especially if the copyright owner makes it easy to license the work.
Patron copies excluded from Section 108 (1)
It is curious that certain media are excluded from the copies permitted by most of Section 108. The logical conclusion to draw from this is that these excluded media are subject to more restrictions on copying than the media that are not excluded (print, recordings and electronic media). This, ironically, is not the case.
Whereas the library would not be protected under Section 108 for copying a recorded musical performance for a patron, the library would be permitted under Section 107 to make the copy so long as the facts involved in the particular copying request weigh in favor of fair use. This would be exactly the same analysis that the library would apply to a reserve request. It is probably true, however, that in most cases, if the library were to consider the request for a patron copy under Section 108 and were to adhere to the limitations of subsections (d) and (e) of that Section, the resulting copying would also be a fair use under the four fair use factors analysis of Section 107. As discussed below, however, some copying that may go beyond the limits set out in Section 108 (d) and (e) and the "related or concerted" copying limitations of Section 108 (g), would be permitted under Section 107. It appears then that copying music, graphics and audiovisual programs for patrons may actually be subject to fewer restrictions by virtue of its exclusion from Section 108 than it would be if these distinctions had not been made. The legislature probably did not intend this result but this happens from time to time, especially with statutes that are as complicated and represent as high a degree of compromise as do the library and fair use sections of the copyright law.
The rare book
Many librarians may have made a copy of a book that is very hard to find, for example, one that is out of print, or whose publisher has gone out of business, one that is not available through the commonly known trade sources and even quite rarely contained in the collections of other libraries. If the librarian were to look carefully at the requirements of Section 108, she would find that only in the case where her own collection originally contained the book but her copy were damaged, deteriorating, lost or stolen would she be protected by the provisions of Section 108 from liability for infringement in making a copy of the rare book. The scope of Section 108 archival copying is not really so broad as many think it is.
The recent Texaco decision suggests that to the extent such copying can be characterized as archiving, the domino effect that such a characterization has on the other factors in the fair use analysis, even in the nonprofit context, can undermine a fair use argument. On the other hand, if it is difficult to obtain permission to copy the work, the fourth factor weighs in favor of fair use. The exercise below shows how these two facts counterbalance each other in analysis under the four factors.
The four fair use factors
Most university libraries are part of a nonprofit educational institution and so the nonprofit educational purpose of the copying would be generally favored under the first factor. But Texaco's holding casts doubt upon this heretofore fairly certain determination. If the copying can be described as "archival," at least in some part, the first factor would no longer be so strongly supportive of fair use as would otherwise be the case. That determination (the weight of the first factor) may adversely affect the other factors.
Assuming that the work is scholarly, and thus more factual than fanciful, the second factor would weigh in favor of fair use. But, as noted above, copying all of a work will likely weigh against fair use under the third factor according to Texaco, though in the nonprofit educational context, it has been found to be a fair use.
Finally, many facts affect the fourth factor. The very nature of the rare book means that it is not commercially available and thus the impact on the market for the work would seem to be negligible. But, there may be harm to the market for permission fees. Also, consider, how print-on-demand has the potential to change this entire discussion. When Google Books reveals interest in a book long out of print, its copyright owner now has options to make the book available again that were impossible only a decade ago.
Theoretical lost permission fees or revenues for print-on-demand are most likely to weigh against fair use where two of the first three factors already weigh against fair use and where it is easy to get permission or print-on-demand. Where it is difficult or even impossible to get permission or to print a copy, the scope of fair use should be sufficient to permit a library to make its own copy. See what a difference a ready market for permission or reprinting can make? This is quite disturbing to many people, but apparently not to the courts...
Public distribution of fair use copies
The library is permitted to distribute works to the public under Section 109. That section explicitly requires that the copy to be distributed must have been lawfully made. A fair use copy is lawfully made, but a copy made pursuant to Section 107 must be used only for "fair use purposes" which, in this context, would usually be research, private study or scholarship. Thus, libraries should include with such copies a note about the circumstances that permitted their creation and the implications for their continued use by the patron.
The special collection
This circumstance carries the rare book scenario to its logical, and some would say, extreme, conclusion. A library may have need to support a particular field of inquiry and may have acquired quite a collection of literature, both books and periodicals, on the subject. Inevitably, of course, there would be items of interest to users of the special collection that were unavailable for some or all of the reasons discussed above. Although this may seem to push the limits of fair use to the breaking point, especially after Texaco, where such materials are not available otherwise (including the possibility of licensing permission to make a copy or print-on-demand), and the purpose of the library's copying is nonprofit and educational, and given a prudent policy of acquiring whatever can be acquired through normal channels, a reasonable fair use defense could be made. It would be helpful to document the circumstances that contributed to the decision to rely upon fair use in each case.
Making copies - archiving (generally)
Libraries were at the center of an intense controversy for several decades preceding the amendment of the Copyright Act in 1976. By the time Congress began to consider codifying the fair use doctrine, it had been substantially interpreted by the courts for over a century. There had not, however, been a single case construing its application to library copying, probably because everyone thought that library copying was a fair use. Representatives of both libraries and publishers had come to an informal agreement regarding the scope of fair use in this context in 1937 (1). Ultimately the stability provided by that agreement deteriorated as a result of at least two occurrences: the rapid change in copying technology in the fifties and sixties and the Williams & Wilkins case (2) in the early seventies.
These events caught both libraries and publishers off guard and neither was satisfied thereafter that their rights were adequately protected solely by reliance upon a vaguely stated fair use doctrine. Over a fifteen year period preceding amendment of the 1909 Act, several draft proposals were filed as Senate or House Bills, the parties commented upon them, and revisions were offered. Ultimately, Congress enacted both a fair use and a library reproduction provision. Reading the history of Section 108 would suggest that Congress intended to define the scope of fair use in the library context, but the section explicitly states that nothing in it affects the right of fair use under Section 107. This attempted clarification, like most, seems to have raised new, unintended issues.
More than three decades have passed since Congress enacted Section 108; the Register of Copyrights has issued two reports addressing whether the balance Congress struck between the rights of copyright owners and libraries has been a fair one; collective licensing has become significantly more important in academic life (i.e. Copyright Clearance Center); lawsuits have been settled that may profoundly affect libraries; publishers have sued libraries to stop activities they consider infringing, and technological change has accelerated at a pace that would have been unthinkable just twenty years ago. Actually, given the circumstances, it is amazing that we still get along as well as we do.
Following is a discussion of what the library exemption permits. We will first discuss the criteria for qualifying to exercise rights under Section 108, then the archiving provision, the provisions addressing patron copies, the relationship between Section 108 rights and contractually assumed obligations and Section 107 rights, and finally, interlibrary loan operations. Please keep in mind that activities not expressly permitted by or those expressly excluded from protection under Section 108, may be protected under Section 107.
Are you the right kind of library?
Not all libraries are qualified to exercise rights under Section 108. Your reproduction and distribution must be without any purpose of direct or indirect commercial advantage as required by subsection (a)(1); collections must be open to the public or to persons unaffiliated with the institution but doing research in a specialized field as required by subsection (a)(2); and your library must scrupulously include with each copy made a notice of copyright as required by subsection (a)(3). Failure to meet these requirements could jeopardize a library's rights under Section 108.
There used to be some controversy about the nature of the copyright notice that was required by subsection (a)(3) to be placed on copies. This confusion was clarified in October, 1998, when the Digital Millennium Copyright Act ("DMCA") amended Section 108. The law now clearly states that any notice on a work should be included on a copy of the work. Otherwise, copies should contain a legend that notes that a work may be protected by copyright law.
There is still controversy over whether Section 108's protections apply to for-profit libraries or libraries operating within for-profit corporations. The House Report specifically indicates that commercial advantage refers to "the immediate commercial motivation behind the reproduction and distribution itself, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located" (3). Thus, it would appear that the research libraries in our country's corporations were intended to be covered. This was not, however, the understanding of the district court that heard the Texaco case; Judge Leval determined that Section 108 would not apply to Texaco's library because its research was done for profit (4). Given that nearly all research in this country is done for profit (5), the Texaco district court's definition of when Section 108 applies might have stripped most research libraries of the statute's protections.
Subsection (b) gives libraries the right to archive unpublished materials; subsection (c) addresses archiving published materials. The requirements for the two kinds of materials are different: to make a copy of an unpublished work, a library's purpose must be preservation or security and it must have a copy of the work in its collection; to make a copy of a published work, a library's purpose can only be to replace a copy it has or used to have in its collection, because the copy has been damaged, is deteriorating, lost or stolen, or the format has become obsolete. Such published works also must be out of print.
One purpose of the archiving right is to allow libraries to make one-of-a-kind and out of print books, manuscripts and periodicals available to other libraries.
Audio and video recordings
Many librarians believe that the law permits them to make back-up copies of audio and video tape recordings. After all, these media are not very easily protected in a lending environment and are are ruined pretty quickly. Thus, it seems only logical that a prudent librarian would make a copy of the recording for lending, retaining the original for the inevitable time when the lending copy fails to come back or comes back ruined. This intuitive belief, however, is not supported by the plain language of Section 108. The right to archive under subsection (c) (for published works) applies only to replacement of a damaged, deteriorating, lost or stolen copy, or when the format of the recording has become obsolete, and then only when a reasonable effort to locate an unused replacement at a fair price or a device that accommodates the format has proven unsuccessful.
Electronic storage and retrieval
In 1998 the DMCA revised Section 108 to permit libraries to make up to three digital copies for archival purposes, but the library cannot provide access to these archival copies off the library premises. This limitation was the publishers' idea, based on their belief that libraries should not be able to lend a digital copy, or put another way, that the first-sale doctrine does not apply to digital works.
2 Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), affirmed by an equally divided Court, 420 U.S. 376 (1975); the publishers "won" when the case was first tried before a Commissioner at the Court of Claims in 1972, understandably alarming the libraries. Then, the libraries "won" when the case was appealed to the full Court of Claims in 1973, likewise alarming the publishers. Ultimately, the Supreme Court affirmed the appelate decision by an equally divided court.
4 American Geophysical Union v. Texaco, Inc., 802 F.Supp. 1 at 27-28, note 1 (S.D.N.Y. 1992). Note that the discussion of Section 108 issues in Texaco is probably dicta in that the court was limited by stipulation of the parties to a consideration of fair use under Section 107. Nonetheless, the court did discuss Section 108 and made conclusions that seem entirely incorrect and quite troubling as a result.
Making copies for patrons
Section 108 authorizes libraries to make copies requested by patrons. The law is neutral regarding the medium of reproduction, thus, "copies" are not so narrowly defined as they are in the archive provisions. One may make a photocopy, a digital copy or send a fax.
Articles or small parts of works
If a patron requests part of a book or an article the library has in its collection (1), the library can make the copy so long as it complies with the provisions of Section 108(d):
If a patron requests a copy of an entire work, the library can make the copy so long as it complies with the provisions of Section 108(e):
Warning of copyright
Sections 108(d)(2) and (e)(2) require that libraries warn patrons about copyright law, and the Copyright Office tells us exactly what the warning should say (2). The regulation requires that we inform the patron about certain facts (see below), but it does not require us to be sure that a patron is acting properly in making a request or require that he or she declare compliance with the law. The library is, however, permitted to deny requests that it believes would violate the law.
2 37 CFR Section 201.14. The warning can be found on pages 19 and 20 of Copyright Office Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians." To find the warning quickly, search the document for 201.14.
Patron use of photocopy machines and computers in the library
Section 108(f)(1) lets us off the hook for unsupervised patron use of copying equipment located in the library so long as the library displays a notice that making copies may be subject to copyright law. Unlike the form of warning for patrons who request that the library make a copy for them, the Copyright Office does not mandate a particular form of notice. Following is a form of warning that most universities can be comfortable using. Note that it covers computer copies as well as photocopies. Place it prominently near the machines.
"Copying, displaying and distributing copyrighted works, may infringe the owner's copyright. The University's policy statement on fair use can help you determine whether your use of a copyrighted work may be an infringement. Any use of computer or duplicating facilities by students, faculty or staff for infringing use of copyrighted works is subject to appropriate disciplinary action as well as those civil remedies and criminal penalties provided by federal law."
Audiovisual news programs
Section 108(f)(3) permits libraries to make a limited number of copies of audiovisual news programs. Unlike other sections of the law that permit copying for patrons, section (f)(3) does not require that the copy become the property of the patron, so the library can retain and lend its copies. Audiovisual news programs include local, regional and national network newscasts, interviews concerning current events and on-the-spot news coverage of news events. The provision was not, however, intended to apply to news-magazines and documentaries (1).
Library contracts can limit your Section 108 rights to copy
Section 108(f) (4) says that if you enter into a contract in the process of acquiring a work for your collection, and the contract limits your rights to copy in some way, the contract prevails over your statutory rights. In other words, you can contract away your rights under Section 108 as you might, for example, in acquiring private manuscripts or electronic databases.
Even if a contract eliminates the library's rights under Section 108, the bigger controversy is whether libraries may contractually eliminate either their own or their patrons' fair use rights. For example, a database license may (i) require the library to prevent patrons from making copies by requiring the library to post a notice that copying is prohibited; (ii) prohibit the library's making a reserve copy or (iii) require that permitted copies include a notice that further copying is prohibited. Would these prohibitions and requirements have any legal effect upon a patron's right to make copies under Section 107? The patron, after all, is not a party to the contract and even a vociferous copyright notice should not unilaterally extinguish a statutory privilege like fair use that embodies a fundamental principal of copyright law (2).
Some librarians may feel that compliance with a requirement to restrict fair use copying makes the library an agent of the vendor against its patrons, or at the least, a participant in the dissemination of misinformation if such prohibitions cannot really be enforced (3). Fortunately, libraries can avoid this unwanted result by careful attention to contracts with publishers: be sure that nothing in a contract between a library and an information provider affects a patron's or the library's right of fair use (4).
2 A quick check of copyright notices, especially on serial publications, would lead most readers to believe that they have absolutely no right to make any copies at all. But fair use removes any requirement to ask for permission and any liability for infringement. So, a unilateral attempt to exterminate fair use appears to do no more than intimidate.
3 Regarding enforceability, it is important to distinguish one-sided non-contractual statements that attempt to eliminate a right (a prohibitive copyright notice), contractual limitations that claim to affect the rights of non-parties (the library and publisher agree to eliminate someone else's rights), a nonnegotiable shrinkwrap or clickwrap "I accept" license, and mutual, bilateral (fully negotiated) agreements. While one sided copyright notices and limits on a third party's rights are not enforceable, the other two may be. Shrinkwrap and clickwrap licenses have done well in the courts (ProCD v. Zeidenberg). Aside from shrinkwraps, parties mutually agree (that is, contract) about many aspects of copyright law every day, but may they agree to waive the right of fair use? Would courts enforce a contract in which a scholar agreed to forego her right to quote from or make a copy of a scholarly article accessed through a university database for the purpose of private study, research or scholarship? A court could address this issue by interpreting prohibitive language like "may not make, store or transmit copies..." to apply only to infringing copies. In effect the court would read the word "infringing" into the sentence itself.
4 Avoid ambiguity as well as broad prohibitions. If a contract is unclear about what patrons can do, insert language such as the following to clarify patron rights: "All transmitting, printing or downloading by Authorized Users shall be limited to making single copies of a reasonable number of individual articles or other items from the Materials for their personal, educational, research or scholarly use."
The distinction between a library and a digital library has all but disappeared-- at least to our patrons. Most libraries are both today, and most patrons can access everything but a book on a shelf through the internet. Still, from a legal perspective, the rights we use to provide access to books on shelves and to provide access to electronic resources are different. This article explains the legal underpinnings of providing access to (what used to be called lending) digital materials.
How does a library legally lend books and periodicals?
Section 109 permits the owner of a lawfully made copy to dispose of it by lending or any other means. This is called the First Sale Doctrine because it permits copyright owners to control only the first sale of a work. After that first sale, copyright owners are out of the loop when it comes to earning a share of any revenues that result from passing the book or periodical on to others. This is the basic legal foundation of our public library system. It also allows book owners to sell their books at garage sales without permission from or payment to the copyright owner.
This right to dispose of a copy does not include the right to make more copies. If copies must be made to facilitate lending, they are typically authorized by other sections of the law, such as Sections 107 or 108, or by the copyright owner. Currently, libraries make copies of print materials in order to lend them to other librarian's patrons in interlibrary loans. They also make copies for their own patrons (research copies and reserve copies) and for archival purposes (preservation and replacement). The right to make copies under Sections 107 and 108 in the print environment is thus subsidiary to the more fundamental lending right under Section 109. Copies help us to lend.
Lending in a digital library
The publishing and entertainment industries believe that the distribution right libraries enjoy under Section 109 for print works should not exist for electronic works because electronic distribution requires that a copy be made. That copy must be authorized somewhere else in the law or by the owner before it can be made and distributed. The Digital Millennium Copyright Act ("DMCA") reflects this belief. It modified Section 108 to authorize making digital copies for archival and preservation purposes, but that's as far as the changes went. The right to distribute such a digital archival or replacement copy of an analog work still requires authorization, according to the changes made to Section 108, and it's not all that clear whether Section 107 (and other sections as appropriate) may be relied upon for such authorization.
Instead of assuming that making a digital copy requires independent authorization, Congress could have taken the position that the copies made in the course of a legal transmission (a legal lending, as it were) were "incidental" and that copies incidental to the legitimate exercise of the distribution right should be fair use. There was some support in case law for this (1). Nevertheless, that's not what Congress did. The DMCA archiving and replacement amendments are pretty clear evidence that Congress did not accept this argument.
Different authorization for licensed and unlicensed works
But in fact, depending on the statutes for authorization to distribute digital works does not in practice pose a problem in many cases because most digital works are licensed and the license provides permission to distribute such works. For example, many licenses will:
Contractual agreements are replacing copyright law's access provisions in the digital library. They are the immediate source of authority to archive, use and distribute digital works. This fact should alert us to pay attention to such contracts and carefully negotiate their terms. But for works in the library that we digitize ourselves, that are not made available digitally by their owners, we still need legal authority to allow us to distribute them. We've got the right to make digital copies, under certain circumstances, but we have to look to other provisions to provide convenient access to those copies to our patrons (2).
Works digitized by or for libraries
So, libraries have the right to distribute works acquired digitally pursuant to contracts, and to create but not to distribute digital archival and replacement copies under Sections 108(b) and (c), and for some time have had the right to distribute digital copies of any work requested pursuant to Sections 108(d) and (e) (patron requests), unless excluded by Section 108(i) (that would be musical and artistic works). But for mass digitization projects, including projects such as HathiTrust, our only source of authority to distribute the works we have digitized ourselves or that have been digitized for us is either fair use, the TEACH Act, or permission from the copyright owner.
Fair use has become stretched so far, because it's all that makes sense in so many cases. Nevertheless, this is a reasonable argument: If we possess a legal digital copy, that is, a copy made pursuant to Section 108's authorization, or as a fair use, we can use the copy for fair uses also. So, for example, if we have a book that's out of print and a faculty member wants to put a chapter from it within his Blackboard or other course management system site, assuming that such a use is a fair use, the library's digital copy can be used for this fair use purpose.
I have provided more information about what kinds of uses are authorized for classroom use in the TEACH Act.
Our digital copy could also be used to provide access to a work for which we got specific permission to make it available to our patrons. In the fair use example above, if you assume the use described is not fair (or imagine another use that you think is not likely fair), you might be able to obtain the copyright owner's permission through the Copyright Clearance Center. With that permission, your use of the digital copy has all the authorization for distribution that it requires. You're set.
1 Sega Enterprises, Ltd. v. Accolade, Inc. 977 F.2d 1510 (9th Cir.1992); the Ninth Circuit found that intermediate copying that was a necessary step in an otherwise lawful activity (making a competing but non-infringing software product) was a fair use.
This article considers the practical effect on the library and its patrons of licensing access to digital resources. It poses questions you should ask yourself as you review proposed license agreements and the terms and conditions you should question or request, as the case may be.
Many contracts contain provisions that are objectionable and should be deleted, or they may fail to provide assurances that libraries should reasonably expect. Your legal office probably reviews such licenses and makes specific recommendations for modifications. Online resources are available too: check licensing resources. Keep in mind that rarely will vendors refuse to negotiate their terms.
Protected expected uses
Protecting expected uses is one of the most important issues in library licensing. Once acquired, electronic access invites a wide range of uses. For example, faculty may assign course readings by simply pointing to them from a departmental web server or from within a course management system (CMS) such as Canvas. This, in turn, will mean that students will wish to download, store and print licensed works. We must acquire enough rights to eliminate the need to ask for additional permission to make customary and expected uses of licensed resources.
This may not be easy. Database publishers are very concerned about their legal protections under copyright law and often try to obtain the security they feel they need with restrictive contract provisions. They may be unwilling to give open-ended rights to use their data. It is possible to define more specifically what users need, but it is important to avoid too narrow a definition. For example, limiting portions that can be copied, etc., to one article or one chapter from a defined unit of some sort is not realistic. Course readings often exceed these limitations. If we expect our database licenses to really meet our patrons' needs, we must be sure we have acquired the rights to accomplish that objective.
This is one of the most difficult issues. Vendors can indemnify Customers, and Customers can be asked to indemnify Vendors, or both. We will discuss each party's indemnification separately.
Vendor's requirement that customer indemnify vendor
There is little basis for our being asked to indemnify the Vendor of a database for anything. The Vendor chooses the data, has the responsibility to obtain all needed rights to distribute the data, and will profit from the use of the data; thus the Vendor should bear financial responsibility for harms caused by the use of the data in accordance with the terms of the Agreement.
Software is more complicated. We may use licensed software in a way that could harm innocent bystanders, in situations where the Vendor can do little to limit those risks. For example, if we license account tracking software, we could fail to enter data into the program resulting in a faulty record that hurts someone's credit rating. If the software Vendor had to accept responsibility for harms that result from our use of its product, the Vendor probably could not sell the product for a reasonable price.
For state institutions like the University of Texas, when it makes sense to accept responsibility for harms to third parties resulting from our use of a Vendor's software, we must be sure to limit our liability in accordance with Texas law by prefacing our Customer indemnity with the words, "To the extent authorized by the Constitution and laws of the State of Texas,".
Vendor's indemnification of customer for intellectual property infringement
We should expect that Vendors will develop their products without infringing the intellectual property rights of others, that is, without appropriating others' protected ideas (patents) or expression (copyrights). There are two common ways to address this concern in a contract. The first is to ask the Vendor for a warranty. A warranty is the Vendor's guaranty that the software or database does not infringe. Many Vendors are not willing to make such a guaranty, especially in the case of software, because it requires that they perform patent searches to make sure that no one has a patent on the idea embodied in their software. If someone has patented the idea of the Vendor's software, it does not matter whether the Vendor independently developed its software; even completely unaware, the Vendor would be an infringer.
For many reasons we do not insist on a warranty. Nevertheless, even in the absence of a warranty, we do expect that if the software or database infringes someone else's rights, the Vendor will take care of any expenses we might incur were we to be sued or asked to stop using the software or database because of alleged infringement. This is a fairly reasonable request and should normally be made in any software or database license. In the following situations, however, we are not very likely to get such an indemnity:
Usually a Vendor's agreement to indemnify means acceptance of substantial risk of financial loss. The first three situations above illustrate circumstances where the Vendor may not make enough money on the product to justify assuming this risk. In effect the Vendor is saying, "If you want this software or database at this price, you'll have to accept the risk that it might infringe. If you want us to accept that risk, it would cost you a lot more money."
The fourth example illustrates the circumstance where the risk of harm to a third party is so unlikely that we can comfortably agree to take the risk.
In these and analogous circumstances, the fact that the Vendor has a reasonable basis for refusing to indemnify us weighs in favor of our accepting a contract even though it falls short of our normal expectations. Other times, however, such refusal would be unreasonable, as where the product is being developed especially for us (and we would be a prime target of an infringement suit), or is commercially successful and widely available, in which case the Vendor is making enough on the product to accept the risk.
It is the role of counsel to advise university personnel who review contracts of the terms that should be included or avoided and of the implications of accepting nonstandard terms. Ultimately, it is a business decision whether to accept a contract that does not meet normal expectations.
Copyright used to be an esoteric branch of intellectual property law
Traditionally, copyright law was the domain of a very limited group of industries, which was just as well because legal scholars, including at least one Supreme Court Justice, have admitted that fair use was one of the most difficult areas of the law to understand. But then most people really didn't need to understand it since it affected so few.
Technological advances in the late 20th century began to change the picture, however, just as the invention of the printing press dramatically changed the picture many centuries before. The photocopy machine in particular seemed to upset gentlemen's agreements between publishers and consumers of printed works about the scope of fair use. Amendments to copyright law in the mid-1970s ostensibly addressed these changes, but then everything seemed to fall apart again in the 1990s.
The electronic environment 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.
The situation is very nearly critical. To some it hardly matters which way it goes, just so long as it goes. But it should matter to the university community for we have much to lose if our interests aren't considered in the resolution of the problems presented by new technologies.
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 in the electronic environment 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.
Copyright to-do list
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.
Universities get sued for infringements committed by their employees
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.
Cost of carelessness
The rules of the road in the electronic environment are being worked out through the legislative process and in our courts. The courtroom is not where most of us would like to have our influence. Nevertheless, 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.
Still, potential litigation is really just a risk of some cost of both time and money. More real to most of us are the costs for subscriptions to scientific, medical and technical journals that have been spiraling out of control for two decades. Most universities have been forced to cut back on book purchases to pay for the inflationary costs of journals. Some cancel subscriptions and rely upon interlibrary loan, a practice that many publishers complain is illegal in itself. Even then, costs of interlibrary loan are escalating as well.
Most importantly, the university must recognize that to a large extent, it has helped to create the circumstances that fostered the explosion of these costs by uncritically buying into the bargain we've made with commercial publishers who do not necessarily share our values regarding scholarly communication.
Benefits of electronic scholarly communication
The electronic medium 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.
A comprehensive intellectual property policy supports university research and educational missions
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 10 years 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.
University intellectual property policies
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? The simple answers, "never" and "always" are unfortunately, not the right answers. Learning to analyze a use to determine whether it's a fair use, while not impossibly difficult, 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 transactionally 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 initial 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.
It's time to get serious
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:
Implementing a comprehensive copyright policy
The manner and means of access to and use of copyrighted works is undergoing dramatic change. We must assume that the way universities use copyright materials today will change too. It may be difficult to agree upon the rate of change, and now that the infrastructure is in place the rate will likely change. Nevertheless, 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 in the 21st century.
We should expect major shifts along the following axes within the next decade:
It may not be possible to know when or even whether we will move all the way from one end of an axis to the other. It is, nevertheless, easy to see that a policy that only suits universities' needs at the near end of these axes will be less relevant and less valuable at the other end.
Understanding the long-term impact of any policy decision is also complicated by the following facts:
Nevertheless, it is time to get started.
Education: distinguishing what's fair use from what needs permission
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 Crash Course has been online for more than 15 years 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 print library materials. Our potential liability should give us all the incentive we need to address these issues directly.
The premise of both subscription and transactional 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. Comprehensive access licenses are the subject of the next section where we discuss strategies to further reduce our need for permissions.
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 subscription 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 for libraries, course management systems, and copy centers, 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. Ideally these different ways of providing students with access to digital and print materials could be integrated into a single system for behind-the-scenes rights clearance, but this option seems to elude us so far.
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. On the other hand, these risks should diminish as comprehensive licensing and subscription licensing opportunities increase.
Subscription licenses have been discussed for many years now, but usually without much progress. In 2007, the Copyright Clearance Center (CCC) introduced he first generally available subscription license for universities. Thus, this discussion is no longer theoretical.
Subscription licensing could help us comply with copyright law, especially where a license covers a broad range of copying types, such as institutional and personal classroom, reserve and research copies, and administrative copies, and other rights including rights to create, display and transmit digital copies and to make print copies from digital works. Ideally the subscription license should contain mechanisms for adjusting fees where direct comprehensive access to electronic information diminishes the need to seek permission for uses outside the license under which access is originally acquired. The CCC indicates that it takes this into account in a rough way by providing lower per student fees for large research institutions that most likely license far more comprehensively than smaller colleges.
Reducing infringement liability: Legal risks in subscription licensing
Most institutions will likely rely on fair use for some or all uses that are not covered by the scope of a subscription 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 subscription 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 a subscription license covers, the better, because any remaining vulnerability to suit significantly diminishes the value of the license.
Even were we to enter into a good, mid- to long-term agreement, that encompassed electronic rights there could still be some problems:
Many are concerned that we risk the erosion of the scope of fair use if we sign subscription licenses. The fear revolves around two points: With a subscription license in place, for any materials within its scope, 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, Blackboard 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 that we have a "fair use" to lose in this context where we are making massive numbers of copies. 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 recent examples where courts upheld fair use. Digital delivery of 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.
Strategies to reduce the need for permissions
In considering our strategies, it is important to acknowledge that so long as we are using others' works, we are obliged by copyright law to pay whatever the copyright owner asks. Even if the price seems to be too much or seems like paying twice for the same thing (once to acquire it, again to make use of it), universities are not currently paying as much as publishers want us to pay, or as much as publishers are entitled to under law. The existence or scope of fair use does not alter this basic fact.
As a further corollary, we should assume that ultimately there may be little difference between the cost of comprehensive access and the cost of bare access plus permission fees for all additional uses since copyright owners have the right to their price whether collected entirely upfront or collected partly upfront and partly after the fact of access. Still, efficiency has its advantages for them as well as for us, and I believe that over time, publishers will evolve more efficient ways to meet our needs and collect revenues from us.
Actively pursue comprehensive access to electronic information.
Retain rights to publicly archive faculty-authored scholarly works
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 now seems possible that electronic publishing could potentially and 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.
Libraries, scholarly presses and IT departments are collaboratively publishing
new types of scholarly works
The electronic environment 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.
It is time for a more active role for universities in copyright management
A mid 1990's Association of American Universities (AAU) Intellectual Property Report suggested that an alternative scholarly works database shared by university faculty, libraries and presses would assure the community access to precisely the kinds of materials threatened by spiraling prices. One member of the Task Force suggested that "[w]here scholars are writing primarily for other scholars, the process will arguably be managed directly by faculty involved and conducted outside the 'money economy' of conventional publishing." Now, 15 years later alternative distribution systems are beginning to be developed by conscious design and simply by natural evolution from practical use of the medium. It seems clear that there will be multiple "tiers" of scholarly publication, and with respect to the greater body of copyright works, multiple tiers of publication generally.
The many publications to address over the years the crisis, now the revolution, and the opportunity of scholarly communication could fill volumes. Again, just Google it. Today, many universities are exploring scholarly electronic publishing as an adjunct to or in lieu of other forms of scholarly communication. The development of this resource is one of the most exciting aspects of the digital revolution.
Policy implementation: summary
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.
Please see Definitions for clarification on any terms
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 the Recording Industry Association of America's (RIAA) Digital Millennium Copyright Act (DMCA) 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 Motion Picture Association of American (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 here on the Crash Course (the first two listed below), and there are additional resources I can recommend from others' websites:
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.
Access to digital course materials
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.
Educause Connect has materials on many copyright issues, including infringement and p2p file sharing.
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 digital educational 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.
Defining “digital distribution”
Universities utilize many different channels to distribute educational materials to students in digital form. For this discussion, I will define digital distribution as institutional use of any digital means to enable students to use their or their institution’s computers to read, listen to, view or reproduce materials assigned to the students by a faculty member in connection with a course offered by the institution.
An ambiguous legal standard fosters differing points of view about whether or to what extent digital distribution is fair use or requires permission
Because fair use is by its nature vague, it complicates the resolution of any problem of which it is a part. Simply put, the question of what constitutes compliance with the law is not easy because fair use is not easy. The fair use statute does not specify what is fair, rather, it describes examples and recites a “four-factor” analysis courts must use to determine in a particular case whether a use is fair. So, fair use is vague, making it unclear what “compliant” means.
Additional forces that shape policies and procedures and pose likely impediments to establishing compliant digital distribution systems
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 the library reserve system 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 in digital distribution involves changing an entire culture, not just a few individuals’ activities. Even if small institutions may work with individual faculty members to enable them to make all these decisions, the inefficiency of doing so seems painfully obvious when you try to apply that approach to mid- to large-size institutions.
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. None of these tasks is easy, and to expect everyone who ever uses others’ works to learn them without the efficiencies created by experience, good record-keeping and sophisticated software is expecting the impossible. 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, in addition to digital distribution of educational materials. For example, institutions are filling digital institutional repositories with materials whose duplication and distribution may require permission, so the same processes we identify and recommendations we might make for digital distribution of educational materials will have some application to other projects on campus. Any use of another’s work that involves making a copy and distributing it online involves some question of whether permission is needed, some analysis of the rights we have already licensed or could easily license to make the copy and distribute it, and the extent of any statutory exemption that might apply. It seems clear that a centralized campus copyright office would greatly facilitate this evaluative process as well as compliance with copyright law, whenever permission is required.
Why act now?
The vagueness of fair use and the difficulty of training thousands of people to analyze it, the cost of compliance, the structural obstacles to controlling literally hundreds of thousands (if not millions) of decentralized potentially infringing behaviors, and the publishing industry’s evolving business models all militate against compliance. Surprisingly, until recently, there was little that pushed the other way. Few universities have ever been sued in this context because neither side seemed in a hurry to clarify the situation -- fair use is vague enough that perhaps neither side felt assured of victory. In any event, the vagueness, described as “flexibility,” is generally perceived by the university community to be an advantage even though it creates uncertainty and fear of being a test case.
While state institutions cannot be sued for money damages in federal court because of sovereign immunity, they can be sued for injunctive relief and attorneys’ fees. Further, it could be politically damaging to be accused of being, or be found seriously out of compliance with what can reasonably be defended. Thus, as publishers’ efforts to encourage licensing in these contexts become more aggressive, universities and libraries must face the problems that compliance presents. Hopefully, through a willingness to discuss the practical difficulties of compliance, we might find solutions to these problems without precipitating litigation.
Most importantly, we must recognize that copyright compliance is not a library problem. It is a university problem. And it needs a university solution.
The Copyright Crash Course was originally created in the mid-1990s. At that time, Georgia Harper created several helpful articles and resources on copyright issues that affect university faculty, staff, and students. These were based on the Copyright Act, case law, and discussions and negotiations that were happening at the time. Some of the information contained in these resources may now be out of date.
Georgia K. Harper was the Scholarly Communications Advisor for the University of Texas at Austin Libraries, 2006-2015, where she focused on issues of digital access. She was Senior Attorney and manager of the Intellectual Property Section of the Office of General Counsel for the University of Texas System until August 2006.
She authored the online publication, The Copyright Crash Course, that provides guidance to university faculty, students and staff concerning a wide range of copyright issues and is freely accessible to all universities and colleges.
She conducted local, state, regional and national workshops and seminars on copyright issues. She was named a fellow of the National Association of College and University Attorneys in June 2001, and in 2010 received the inaugural Georgia Harper Copyright Literacy Award from the Center for Intellectual Property at University of Maryland, University College. In 2014 she received the L. Ray Patterson Award from the American Library Association for advocacy on behalf of copyright users' rights, most notably fair use and the public domain.
Ms. Harper graduated with High Honors from the University of Texas at Austin with a B.S. in Education and with Honors from the University of Texas at Austin's Law School with a J.D. degree. She also holds an M.S.I.S with a focus on digital libraries from the University of Texas at Austin's Information School, and an M.A. in Contemplative Education from Naropa University, Boulder, Colorado.