1. Gail McMillan gailmac@vt.edu
Copyright in Scholarship and Instruction and an Open Access Primer
Gail McMillan
Digital Library and Archives, University Libraries, Virginia Tech
Feb. 6, 2012 pr

2. U.S. Constitution Article I Section 8 Clause 8
[The Congress shall have power] "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
We will review rights and obligations outlined in US copyright law and cover the four criteria that must be addressed under the Fair Use Guidelines. Since many librarians are also involved in instruction, we’ll review the TEACH Act and discuss what may be different for teaching and learning in the distributed environment. We will also review of some of the key resources that can help faculty answer their questions about copyright law, including the new NIH Open Access Policy.
I AM NOT A LAWYER.

3. Copyright Law: U.S. Code, Title 17
Section 102: Original authorship stabilized
when fixed in a tangible medium of expression
Section 106: Exclusive rights of creators
Limitations to exclusive rights
Section 107: Fair use
Section 108: Library services
Section 110: Instruction--TEACH Act
Section 102: What can be copyrighted?
original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be communicated,
As of March 1, 1989, the copyright warning does not have to appear on a work for it to be legally copyrighted.

4. Who owns the copyright? Creators of original works
Life + 70 years
Employers: works for hire
95 years from publications, or
120 years from creation
Creators' assignees

5. As copyright holder, you control
Reproduction
Modification
Distribution
Public performance
Public display
EXCEPT…

6. Permission or license to use a copyrighted work is NOT required if
Work is a fact or an idea
Phone numbers, earth is round
Public domain
Does not mean the Internet/worldwide web
Intellectual property not owned or controlled by anyone
US government documents
It’s very old:
Fair use
TEACH Act
PUBLIC DOMAIN
Life of the author plus 70 years (extended from 50 years)
1998 Copyright Term Extension Act
Sonny Bono CTEA: songwriter, Mayor--Palm Springs
Mickey Mouse Act
TEACH Act 2002

7. Fair Use Myth It's OK--it's for educational purposes.
Before using someone else's work without permission, weigh ALL 4 FACTORS
VT Fair Use Analyzer
Fair Use Checklist
1. Purpose and character of use
2. Nature of the work
3. Amount, substantiality
4. Effect

8. 1. Purpose and character of use
Commercial or educational use
For profit or not
Degree of transformation; value added
For criticism, commentary, news reporting, teaching, scholarship, research
FAIR USE 1 of 4
FACTOR 1: What is the character of the use?
Degree of transformation; value added
© Myth: I modified it; now it's mine.
Pretty Woman: 2 Live Crew (Campbell, aka Skywalker, et al.) v. Roy Orbison Estate (Acuff Rose Music, Inc.), 1993/94

9. 2. Nature of the copyrighted work
Worthy of (extensive) protection?
Character of the work?
fact (information) or fiction (imaginative)
Published facts weigh in favor of fair use
Unpublished original expressions weigh in favor of seeking permission
FAIR USE 2 of 4
Facts (name, phone number, short phrases, etc.) and ideas cannot be copyrighted but the way that you describe and present them can. (Brad/Myths says: expression and structure. )
Think of it as a continuum between unprotected ideas and facts and protected expression.
FACTOR 2: What is the nature of the work to be used?
Is the letter you wrote to your high school sweetheart his/hers to publish?

10. 3. Amount and substantiality
Use only what is necessary
Quantity in relation to whole work
Quality in relation to whole work
FAIR USE 3 of 4
Ford’s memoirs

11. 4. Effect
Harm to potential market or value of a work after a portion has been used separately from the whole
FAIR USE 4 of 4
POTENTIAL!!!

12. Fair use: weigh each factor
VT Fair Use Analyzer
Did the scales tip in favor of fair use?
If not
Modify your use
Use library services: Title 17 U.S.C. Sec. 108
Ereserve
Why not use Scholar?
Ask for permission

13. After you’ve checked Sherpa RoMEO
publisher copyright & self-archiving policies

14. Copyright permission services
Copyright Clearance Center
Association of American Publishers
You asked but they never responded. You don’t have permission.

15. Orphan Works Good faith, diligent, unsuccessful search
US Copyright Office report ( )
The “Orphan Works” Problem ( )
Statement of Marybeth Peters, Register of Copyrights, to House Subcommittee on Courts, the Internet, and Intellectual Property
Legislation, amendments, no vote.
Assume it’s copyrighted
The Copyright Office proposed one exception to the basic rule of reasonable compensation, which is a safe-harbor for certain limited uses performed without any purpose of direct or indirect commercial advantage. The exception would apply only where the user ceased infringement expeditiously after receiving notice of a claim for infringement. We believe that this provision is a critical piece of the orphan works solution.
In most instances, we expect that the kind of uses that fall within the safe harbor will be made by museums, archives, universities and other users acting for cultural or educational purposes. In order to effectively bring important material to light, these users may need an additional safety net. For example, in the case of a local historical society seeking to make multiple orphan photographs available on its website or in a pamphlet, it is possible that reasonable compensation, in the aggregate, would still prove onerous. Such uses are in the public interest, and they will rarely conflict with the normal exploitation of the work or conflict with the legitimate interests of the copyright owner.

16. Copyright re Libraries: Sect. 108
Ground Rules
No commercial purpose
Open to outsiders
Notice on copies
Preservation copying
Photocopy Services: Copies for private study
ILL: copies for InterLibrary Loan
Reserve Services: copies for students in a course
DMCA: Digital Millennium Copyright Act 1998
Safe harbor for ISPs (Internet Service Providers) like our university
Must have registered agency contact
Take down--then investigate (not the previous innocent until proven guilty)

17. Copyright for Instruction
USC Title 17 Section 110
Limitations of certain performances and displays
Face-to-face classroom settings
Broadened by TEACH Act (Nov. 2, 2002)
Technology Education And Copyright Harmonization
Must have an institutional copyright policy
Institutional copyright policy does not have to be specifically for the TEACH Act

18. TEACH Act Fair use standards in online education environment
Modified existing copyright law for
Accredited nonprofit educational institutions
Mediated instruction
Integral part of class session
Limited to enrolled students
Accurately informed about copyright compliance
Reasonably prevent
Retention beyond course
Unauthorized further dissemination

19. TEACH Act: Works allowed. DISTANCE LEARNING CLASS IS THE
TEACH Act: Works allowed DISTANCE LEARNING CLASS IS THE SAME AS IN THE CLASSROOM
Show entire nondramatic literary works
News, poetry, speech
Show entire nondramatic musical works
Everything else in reasonable and limited portions
Plays, movies, operas, TV shows, choreography

20. TEACH Act--You must not use
Works marketed primarily for distance education
Unlawfully made or acquired copies
Materials meant for additional study outside of class
EReserve, Reserve, Scholar (i.e., CMS)

21. TEACH Act--You must Transmit as an integral part of class session
Regular part of systematic, mediated instruction
Use copyrighted materials only when directly related to the lesson
Limit access to students enrolled in the course
Have an institutional copyright policy & inform students about it
Block further dissemination

22. Copyright Resources from VT DLA
Copyright Homepage
Library Copyright Policies
Fair Use
Copyright and ETDs
Request Permission: Sample letter
Publishers copyright & self archiving policies

23. Copyright Resources Copyright Advisory Office, Columbia
Crash Course in Copyright (UTAustin)
Library of Congress, Copyright Office
Legal Information Institute (Cornell)
Stanford University Libraries
WIPO Study on Copyright Limitations and Exceptions for Libraries and Archives (Crews, )
TEACH Act Toolkit (NC State)

24. Open Access: A Primer What is it, really?
Gratis, libre, green, gold: decode the jargon
Intellectual VT
Peter Suber, Joy Kirchner, VT Provost’s Office
Charles Eckman, Patricia Hudson, Dan Morgan:
Peter Suber
Berkman Fellow at Harvard University
Senior Researcher at SPARC
Open Access Project Director at Public Knowledge
Professor at Earlham College (philosophy, computer science, law)

25. Open access is
using the Internet to make research literature publicly available
“There are better ways to pay the bills than by charging readers and creating access barriers.”

26. Why remove access barriers?
Accelerate research
Enrich education
Share the learning of the rich with the poor and the poor with the rich
Make this literature as useful as it can be
Lay the foundation for uniting humanity in a common intellectual conversation and quest for knowledge

27. Legal basis of Open Access
Consent of the copyright holder
for newer literature
Expiration of copyright
for older literature

28. What’s gratis and libre OA?
Gratis OA
No barriers have been removed
Does not allow more than fair use
Libre OA
Author has removed permissions barriers in advance
Both gratis and libre remove financial barriers.

29. OA authors allow Internet users
Read
Download
Copy
Distribute
Print
Search
Link
Index
Pass text as data to software
Any other lawful purpose
Copyright still gives authors control over the integrity of their work and the right to be properly acknowledged and cited.

30. Roads to Open Access Retain enough rights
Authors have copyrights until they transfer them.
Journal publishers
Authors share their rights by permitting non-exclusive use of their copyrighted works.
Director of OA Journals
NIH PubMed Central deposit
University/library repository: VTechWorks
VT Policy 13000

31. VT Faculty Handbook, IP Policy 13000
Traditional results of academic scholarship, i.e. textbooks, literary works, artistic creations, artifacts
Contribute to the university’s benefit by their creation and continued use by the university in teaching, further development, enhancements of the university’s academic stature
Presumption of ownership is to the author(s)

32. VT Faculty Handbook Intellectual Property Policy 13000
Presumption of ownership is to the author(s)
University rights limited to free/no cost use in perpetuity
Teaching
Research
Extension
Etc.

33. What does green and gold OA mean?
Gold OA = peer-review + publicly available
Subsidized by host (university, society)
Charge fees to accept articles
Paid by authors, employers, grants
VT Libraries/Office of Research may provide resources
Green OA = self archiving, IR
DLA, VTechWorks
Both may restrict access for a limited duration when required, but the goal is to provide public access to this information, not just access to the current university community.
Hybrid journals are subscription based but charge authors a fee to make articles open access

34. OA charges Hudson/Oxford/ALA
Hudson

35. Subsidized Faculty Benefited UC Berkeley Simon Fraser
Eckman

36. Ranks of Benefiting Faculty UC Berkeley Simon Fraser
Eckman

37. Charles Eckman Reported at ALA Midwinter 2012
Faculty will publish OA when insulated from publication charges by funds from whatever source
Researchers will use extramural funds
University OA fund will be tapped
<1% of a library’s materials budget makes a big difference
Experimentation is
Practiced by the publishing community
Valued by campus community
Vital for libraries
Eckman

38.
Morgan

39.
Morgan

40. Open Access to the Scientific Journal Literature: Situation 2009

41. Kircherner’s Economics of Quality
IF YOU USE CITATION PATTERNS TO JUDGE VALUE OF A JOURNAL, an early study by Carl and Ted Bergstrom showed that JOURNALS FROM COMMERCIAL PUBLISHERS TAKE 91% OF OUR BUDGETS BUT YIELD ONLY 38% OF CITATIONS.
CONVERSELY, WE SPEND ONLY 9% ON JOURNALS FROM NON-PROFIT PUBLISHERS THAT GET 62% OF THE CITATIONS. DISCONNECT BETWEEN VALUE AND COST.
ONE INDICATOR THAT OUR MARKET IS DYSFUNCTIONAL.
*****THE COMBINATION OF AUTHOR INDIFFERENCE TO COST AND PREFERENCE FOR STATUS TITLES/PUBLISHERS HAS GIVEN TREMENDOUS PRICING POWER TO COMMERCIAL PUBLISHERS LIKE THE BIG FIVE******
“Economics: The Not-So-Hidden Costs” Joy Kirchner, Virginia Tech Libraries Jan , 2012.