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

2. Copyright Workshop Course Reserves, ILL, Electronic Resources and Academic Libraries What’s Fair Use? & What’s Not?

3. Presume EVERYTHING IS OWNED [copyrighted, patented, trademarked] by someone.

4. Only the owner can copy distribute perform display or make a derivative work.

5. “FAIR USE” LETS YOU USE OTHERS’ WORKS…

6. …BUT NOT VERY MUCH, AND NOT FOR VERY LONG.

7. What is Copyright? Copyright laws grant exclusive rights to the owners of an original work such as: –Literary… musical… artistic… A set of EXCLUSIVE RIGHTS

8. Basis for Copyright A little history… “To every cow, her calf.” An Irish king in settling property rights in a manuscript. In the mid - 15 th century with the invention of the printing press, laws were passed in London to control the presses – and what was printed –  Authors lose rights at first printing…

9. Basis for Copyright A little more history… By 1694, these same printing institutions wanted Parliament to grant them rights in perpetuity…so, between the 16 th and 17 th centuries, controlling print content became control of printing.

10. Basis for U.S. Copyright In the early 18 th century, authors are again considered –  They are given a 14 year exclusive term and the opportunity to renew for an additional 14 years, if they are still living … Statute of Anne: 1710 Model for U.S. Constitution, Article 1, Section 8.

11. Basis for Copyright Constitution, Article I, Section 8: “The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Title 17 of U.S. Code - Federal Copyright Law

12. Copyright... Work Must Be: –Original expression –Fixed in a tangible form Begins: –At the moment original work is fixed  Example: lecture notes, email letters, family photos, family letters, letters to the editor! Anything saved to a disk…

13. Non-Protected Works - Cannot be Copyrighted Facts Titles Names Short Phrases Ideas

14. Public Domain Federal Government Works Non-Protected Works Lost Copyright Expired Copyright Abandoned Works

15. Registration & Notice Copyright may be registered © Notice may be placed on work Neither are required in order to be protected

16. S. 106: Protected Rights of Copyright Owner Reproduction - making copies Derivative Works Distribution - distributing copies Public Performance Public Display

17. Statutory Exceptions Limitations on Exclusive Rights: Fair Use – section 107 Reproductions by Libraries and Archives – section 108 Exemptions of certain performances and displays – section 110(2)

18. S. 107: Limitations on exclusive rights: FAIR USE “Notwithstanding the provisions of section 106, the fair use of a copyright work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, …

19. S. 107: Fair Use … for purposes such as: – criticism, comment, news reporting –teaching (including multiple copies for classroom use) –scholarship or research …is not an infringement of copyright.

20. S. 107: Fair Use “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-”

21. S. 107: Fair Use Purpose/Character of Use - commercial or nonprofit educational? Nature of Work - factual or fiction? Amount and Substantiality - 10%?? Effect of use on Market or Value –All FOUR FACTORS are EQUAL.

22. …all of these (the famous “four factors”) 1.Purpose 2.Nature 3.Amount 4.Effect …must be considered.

23. Agreement on Guidelines From the House Report which accompanied the Copyright Act of 1976 – Only considered contemporary technology – i.e. photocopies The Guidelines (included in your handouts) give examples, definitions and prohibitions.

24. The Four Factors and... …Real Life Situations Course Reserves: Print & Electronic Media Reserves Interlibrary Loan »…Interpreting fair use

25. Course Reserves and Fair Use The Agreement on Guidelines applies to print reserves. Permissions required when fair use cannot be applied. Copyright Statement on Reserve Request Form must be present.

26. Course Reserves…Print Fair Use applies first semester only. Copyrighted materials in Retail/Photo copied Course Packs may be placed on reserve, but not without paying royalties. Prints of full text articles from the web cannot be copied for print or electronic reserves (except in “emergency”) Prints of graphics from web site cannot be copied for print or electronic reserves, (except in “emergency”.

27. Course Reserves: Electronic The Agreement on Guidelines does not address digital concepts or applications… CONFU – Conference on Fair Use developed sets of guidelines for uses not addressed in the House Report. Electronic Reserves guidelines were not widely accepted but it’s a place to start…

28. CONFU GUIDELINES Fair use in Electronic Reserve Systems Contingent on these limitations: SCOPE OF MATERIAL NOTICES AND ATTRIBUTIONS ACCESS AND USE STORAGE AND REUSE

29. -Electronic Reserves Practical applications of CONFU Documents are accessible only by faculty name and course Access is limited to currently enrolled students and faculty Password is assigned by library staff to each class Faculty may LINK to electronic library reserves from their department pages or personal pages

30. Electronic Reserves The first page of each reading/article must have a full bibliographic citation. DMCA requirement: A copyright notice must appear on the first page of each document to accompany the complete citation (replaces the generic stamp used for so many years: “This material may be protected by copyright law, Title 17, U.S. Code.”)

31. ILL & CONTU National Commission on New Technological Uses of Copyrighted Works – reported in 1978 and provided guidelines for libraries and copyright proprietors on acceptable amounts of “systematic reproduction.” Such requests should not be made in “such aggregate quantities as to substitute for a subscription to or purchase of” copyrighted works.

32. ILL & CONTU Guidelines apply only to requests for journals dated within five years of the request (recent)… When ILL requests for one journal title exceed five in one year, royalties should be paid. –= “Suggestion of Five” Records of ILL requests should be maintained for three years. http://utsystem.edu/OGC/IntellectualProperty/illconfu.htm

33. Related Issues License Agreements for databases –Know how to retrieve this information when you need it –Most license agreements are negotiated according to patron base Links to full text articles are always preferable to rescanning on a new web page or into electronic reserves …***

34. S. 108: Libraries and Archives Library must be open to the public No commercial purpose involved No systematic reproduction or distribution Each copy must bear notice of copyright Private study, scholarship or research

35. Section 108 Unpublished works may only be copied for preservation or replacement AND, ONLY if the library or archives owns the item No limits on LENDING unless it would substitute for a subscription to or purchase of such work

36. Your Responsibilities As University Library personnel, it is your responsibility to: –Inform your patrons of the above restrictions –Instruct your patrons on proper attribution, acknowledgment and citation on each reading –Resist the temptation to turn a blind eye to the portion limitations and systematic abuse

37. Liability Issues… 3 Types of Infringement Direct infringement - knowledge of infringement Contributory infringement –you must either have knowledge, i.e. faculty directed –or you must materially contribute, i.e. university equipment used Innocent infringement - very rare on a university campus –Staff (button pusher) responsibility KNOWLEDGE OF INFRINGEMENT IS IRRELEVANT TO YOUR LIABILITY IS IRRELEVANT TO YOUR LIABILITY KNOWLEDGE OF INFRINGEMENT IS IRRELEVANT TO YOUR LIABILITY IS IRRELEVANT TO YOUR LIABILITY

38. Kinko’s Case The added damages in the Kinko’s case were NOT based on financial loss to the publishers. “Kinko’s had failed to instruct its employees in the pertinent aspects of copyright law…[so that] substantial damages are necessary to deter Kinko’s future infringements.” P. 625, Ginsburg et al. Liability Issues… what you need to know (cont.)

39. You cannot be “directed by a higher authority” to do anything that you suspect would be an infringement. Intent to infringe is NOT required, to be found liable. Policy protects the institution and its faculty only if the faculty have followed policy. Liability Issues… what you need to know (cont.)

40. Library Liaison – To Do List Inform patrons about their fair use rights and limits - –Remember to tell them the good news first ie. What they CAN do. Call your Copyright Office with questions. Send unhappy (belligerent) patrons to the University Copyright Officer (for a shakedown) and keep lists of difficulties for discussion.

41. “Recent” Legislation 1997 - jail time was added for willful infringement Sonny Bono - Term Extension - 20 years added protection Digital Millenium Copyright Act passed into law, October 1998 TEACH Act – November 2002

42. DMCA Digital Millennium Copyright Act What did it change? –Reduced liability for libraries and technology providers for what their clients do with university equipment

43. DMCA Digital Millennium Copyright Act What did not change?  Section 107- Fair use was NOT expanded to include digital environment.

44. DMCA Digital Millennium Copyright Act Why should I be informed about the DMCA? –When our campus receives “cease & desist” notices based on alleged infringement found on Mason’s servers, subpoenas for names may not be far behind… –DMCA’s offer of reduced liability has strings attached…

45. DMCA Digital Millennium Copyright Act –STIPULATIONS include Institution agent required to register with the Library of Congress to field complaints Institution must post copyright compliance polilcy Accurate instruction on copyright and University policy must be offered Posted notices required on equipment

46. Where is my fair use? TEACH Act – signed November 2002 acknowledges fair use for distance learning – and other avenues for online publishing in non-profit education…

47. TEACH Act  Alters Section 110(2) to include Distance Education and digital transmissions in addition to “closed-circuit” T.V.  Restrictions include: Limiting access to enrolled students Providing Technology measures to prevent retention of the work in accessible form.

48. TEACH Act The GOOD NEWS –Expands allowed works Display/performance of almost all types Quantity limitations –Expands receiving locations All locations – not just closed-circuit T.V.

49. TEACH Act More GOOD NEWS… –Allows storage Retention and access for limited time –Allows digitizing of analog materials Only if not already available in that form

50. TEACH Act The BAD NEWS –Law still based on “mediated instructional activities” –Institution must impose restrictions on access –Encourages increased centralization of Distance Learning course design and implementation …which may lead to increased content monitoring Raising issues of academic freedom –Not the same broad rights as “face to face” classroom allowances

51. TEACH ACT For Instructors… What’s allowed –“reasonable and limited portions” of dramatic or non dramatic literary and musical works, “in an amount comparable to that which is typically displayed in the course of a live classroom session.”

52. TEACH Act For Instructors What’s off limits for digitization –Anything marketed in that format –Anything “not lawfully made and acquired” under U.S. Copyright Act.

53. What has TEACH Act done for Electronic Reserves? …nothing. Legislation specifically excludes Electronic Reserves We continue to rely on the old CONFU Guidelines.

54. What should everyone know about copyright? Work is protected from the moment the pen meets the paper. No registration with the Library of Congress is required for protection. No “  ” is required. YOU are a copyright owner. Fair use is determined on a case by case basis…

55. …Who decides what’s fair? Usually case law helps to decide. Unfortunately, there is no case law involving libraries to help library personnel develop clear policies or even guidelines. The Agreement on Guidelines from the House Report on the Copyright Act of 1976 for print, CONTU for ILL, and CONFU guidelines (although not widely accepted) are helping many to develop safe harbors for academic uses.

56. In conclusion We are not police officers, but we do have responsibilities and should take them seriously. Always sympathize with the perturbed instructor. “I know this is very frustrating, especially at this time of year…” Remember: These are not your personal rules. You are only doing as instructed in order to protect your library and your university.

57. In a nutshell… Educational purpose –does NOT equal FAIR USE. 10% IS NOT ALWAYS FAIR USE. OUT-OF-PRINT does NOT mean out-of -COPYRIGHT. WWW is NOT public domain.

58. University Copyright Resources Office http://copyright.gmu.edu/ George Mason University Libraries 703-993-2544 copyright@gmu.edu