COPYRIGHT COMPLIANCE

IT'S TIME TO GET SERIOUS

I recently attended a CONFU working group negotiation on the use of digital images for nonprofit educational purposes and a CONFU general meeting with representatives of five separate working groups. These experiences were real eye-openers. Publishers by and large are very wary of electonic uses of their works and they have very narrow ideas about the scope of fair use. It is amazing that publishers and users are able to come to any agreement concerning the scope of fair use in the electronic environment and not at all surprising that their agreements describe a very narrow scope. What is surprising is the relative lack of awareness of what is fair use on campus. Most users really have no idea at all. The combination of fearful publishers and blase users makes it unwise to ignore the possibility of a lawsuit: Publishers have had several recent successes in the courts and many universities fear that one of us will be their next target. Could we withstand an allegation of infringement?

Compliance strategies

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 blanket licenses where they would be advantageous and begin to acquire access in digital materials that is sufficient to obviate the need for additional permissions to use such licensed electronic information.

In addition, we must consider becoming more involved in the management of the copyrighted works created on our campuses.

Thus, our strategies include:

1. Education
   • What is fair use?
   • What activities require permission?
2. Transactional licensing
3. Blanket licensing
4. Reducing the need for permissions
   • Acquiring sufficient rights to use with initial digital access
   • Increasing university involvement in copyright management and scholarly electronic communication

PLANNING AHEAD

The manner and means of access to and use of copyrighted works is undergoing dramatic change that will only accelerate in pace in the years to come. We must assume that the way universities use copyright materials today will change too. It may be difficult to gauge or agree upon the rate of change, and once the infrastructure is in place the rate will likely change again. Nevertheless, to comply with copyright law, we must identify as closely as we can what our future needs will be so that we make arrangements to meet those needs and not just the needs we have today.

We should expect major shifts along the following axes within the next decade:

• from institutional to personal copying
• from photocopying to print copying
• from photocopying to digital copying (involving duplication, transmission, display and performance)
• from acquiring bare access and seeking additional permission to use works to acquiring comprehensive access (access that includes the right to make most expected educational uses of works in a digital environment)

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 strategy 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 benefit of various compliance strategies is also complicated by the following facts:

• not all universities will move along the axes at the same rates
• many universities have not yet come to terms with the scope of their responsibility for copyright permission fees or who should pay for additional costs to use works
• both blanket licenses and transactionally based licenses have their drawbacks, risks and costs as well as benefits
• there are different opinions about exactly what "short-term" and "long-term" mean
• some factor or factors that is/are relatively unpredictable could materially alter our underlying assumptions:
  • technological change
  • legal change

Nevertheless, it is time to get started.

EDUCATION: WHAT UNIVERSITY COPYING ACTIVITIES REQUIRE PERMISSION?

There are extensive works available online that can help with the task of determining fair use. The charge to administrators, however, is more difficult than that. You must figure out how to get this information to the people who need it when they need it and make it easy to get permission when fair use is not enough.

These are examples of the kinds of activities that probably require permissions of some sort on most campuses:

• Photocopies. Many universities already license some or all of their Copy Center photocopying activities such as coursepacks; their interlibrary loan photocopying activities that exceed the copying permitted by Section 108; document delivery services; some reserve photocopies; and sporadically, other copies.
• Digitizing, displaying and transmitting print works. As the demand for electronic reserves and course materials increases in the short to mid-term, libraries and faculty need permission to digitize and distribute print copyright materials through means such as the Internet when the amount used or the manner of presentation exceeds the bounds of fair use or other statutory exemptions.
  Since the Copyright Clearance Center currently can not grant permission to digitize, display and transmit print works, the only way to obtain such permission is to request it from the publisher, which is more often than not, impractical. Demand for electronic access to print works thus creates a heightened risk of infringement: digitizing offers the prospect of creative uses for which it is often impossible to get permission, a fact that doesn't always stop users in their tracks. This risk could be effectively addressed by acquiring a blanket license that included the right to digitize, display and transmit print works, if not with the Copyright Clearance Center, then perhaps with smaller groups of publishers of largely academic and scholarly materials.
• Using digital works beyond the terms of an access license. Universities license increasingly large amounts of electronic information by acquiring it directly from the publisher or from a licensee of the publisher who has cumulated it into a database. If universities are not careful, however, they will find that they have acquired this material in a manner that precludes the uses they may be expected to accommodate. Careful attention to the details of software and database licenses is very important.

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 an incentive to address these issues directly.

On the other hand, in the context of the more fully digital library (say 7 to 10 years from now), our rights under the licenses that give our employees access to the works of others combined with fair use rights under copyright law may well be sufficient to cover most of the uses of works that the institution and its users would need: there should be no need for the university to make coursepacks when faculty members can point to digital works at the library to assign course readings; libraries should not have to make or hold reserve copies when works are available electronically from anywhere on campus and hopefully even off-campus; libraries should not receive requests for research, private study or scholarship copies -- patrons will more likely make such print copies themselves if they wish to and such downloading and printing out for personal use should be considered a fair use if it is not expressly permitted in the license.

This emphasizes the need to pay close attention to the negotiation of those licenses! We must take steps now to secure the rights that we can reliably predict we'll need tomorrow.

LICENSING

The premise of both blanket and transactional licensing is that universities need permission to use works beyond the rights they acquire with access. This premise is often true in today's print environment. Will it be true in the digital environment? For example, if a database license's express terms or fair use covers browsing, transmitting within the campus environment, displaying, performing (as appropriate), downloading, and printing reasonable portions of the database for personal and educational use (assigned readings, scholarship, research and private study), the license would be sufficient to meet most university copying needs and no resort to additional permissions would be necessary.

In cases where works may only be needed occasionally, the library may prefer to acquire them on an as-needed basis (through interlibrary loan or by document delivery) rather than license them upfront. Thus, libraries likely will need both access licensing (comprehensive licensing) and transactional or blanket licensing for additional permissions.

TRANSACTIONAL LICENSING

The transactional licensing option allows us to license permission as needed (on a transactional basis). It requires that we establish relationships with the Copyright Clearance Center for libraries and copy centers and work harder to educate and inform students and employees of their rights and responsibilities under copyright law.

There are certain legal risks associated with this alternative to the extent universities rely upon fair use to exempt some copies from the obligation to ask permission and pay fees. Such universities will always be working towards compliance and will always have activities that publishers will perceive to be outside the scope of fair use, even if the universities feel strongly that such activities are within the bounds of fair use. The current instability in the scope of fair use exacerbates this risk. The risk will diminish as comprehensive licensing increases.

These risks further highlight the need for more comprehensive educational efforts.

BLANKET LICENSING

Blanket licenses have been discussed for many years now, but as yet there is no generally available blanket license for universities. Thus, this discussion is necessarily theoretical.

Not all blanket license opportunities would be good ones for the university. The coverage of the license would have a tremendous impact on its utility. At this time, we can only lobby for the kind of license that would be most beneficial, but if at some time in the future, a blanket license is actually offered by any entity, for example, the Copyright Clearance Center, or the Association of American University Presses, we would have to carefully consider its benefits and risks. Blanket licensing could be a valuable tool for complying with copyright law, but only if the blanket license could be made to cover a broad range of copying categories, such as institutional and personal classroom, reserve and research copies, interlibrary loan and document delivery services, and administrative copies. It should also include electronic rights to create, display and transmit digital copies and to make print copies from digital works. Ideally, it 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. Alternatively, if there is a viable transactionally based alternative to the blanket license, a fee adjusting mechanism would not be so important.

A narrow blanket license, for example, one that only covered the making of photocopies for coursepacks, would meet only a small fraction of university needs, in fact, needs that are going to diminish over the next decade. There may always be some need for photocopies, but other kinds of copying are going to increase over the mid- to long-term. Thus, if universities were only able to enter a blanket license for photocopies with fees that did not reflect expected changes in the need for photocopies, the benefit from such a license might be very short lived after which universities would be better off licensing the right to photocopy as needed (as they do now). Considering that it may take several years to negotiate such a license, the long-term utility of such a great amount of effort to license photocopies only is questionable.

Fair use and the blanket license

One of the biggest issues in structuring a blanket license is how to take fair use into consideration. One way this might be done is for the blanket license to cover only copies beyond those permitted by fair use and other exemptions. Under this structure, universities would still have the burden of being legally responsible for their interpretations of what is fair use or otherwise exempt, that is, they would still be vulnerable to challenge from publishers that some of their copying, in fact the copying that is outside the license, is not a fair use or otherwise exempt. Given the wide range of interpretations of fair use, this may be a considerable liability and for those institutions that are very risk averse it has the effect of causing them to pay for copies that might well have been fair use.

Most discussions of blanket licensing usually include an offer by the licensor to indemnify participating universities against suits from publishers, but such an indemnity would not cover uses outside the license. Thus, the liability described above for fair use copies would not be covered by the indemnity so long as those copies were not part of the license arrangement. Any blanket license then should include as much copying as possible, for any remaining vulnerability to suit significantly diminishes the value of the license.

Additionally, it may not be in universities' best interests to have the licensor representing university interests in cases that may affect the scope of fair use.

For discussion purposes, assuming a good, mid- to long-term agreement, that is, one that will still be of benefit five to ten years from now because it encompasses electronic rights and includes mechanisms that measure the licensee's need for any kind of copies as compared with its licensing directly from the publisher all the access and rights to use it requires, following are additional legal risks:

• There is some risk that the creation of a blanket license, even a good one, will contribute substantially to the erosion of the scope of fair use as Texaco illustrates and others have noted.
• It is hard to escape the conclusion that entering a blanket license agreement strongly implies that some portion of a university's copying is not fair use. It would be very risky for a university to break off such a license without having secured alternative access or another way to obtain permission to copy. Thus, attention to the details of licensing access and maintenance of a healthy transactionally based licensing alternative are both very important.
• Entering a license would significantly reduce a university's risk of lawsuit, but it is important to understand that the risk of lawsuit may not disappear altogether, as discussed above.

If we assume a less than optimal license, that is, one that does not include electronic rights (a short-term photocopy-only blanket license) and contains no mechanism to link fees to significant decreases in the need for photocopies, or that is difficult to terminate, the risk of lawsuit would be high since the license would cover less copying, and over time universities would probably go on paying for photocopies they no longer needed as electronic access increased (with permission for educational uses in the digital environment incorporated into the access license).

DEFINITIONS

For purposes of this discussion, the following words will have the definitions set forth in this section:

Bare access: Acquisition of a work in digital or print form without the right to make any use of the work other than as provided under copyright law.

Blanket license: A license that permits a variety of types of copying with a charging mechanism unrelated to the number of copies made.

Centralized copying: Copying carried out at university and library copy centers or other centralized, manned copy centers (where there are usually identifiable individuals that do all of the copying for various others).

Comprehensive access: Acquisition of a work in digital form with sufficient rights for the licensee or end users to make all reasonable educational uses of the work needed in a digital environment.

Decentralized copying: Copying carried out at unmanned or unsupervised copy machines by individuals (where there are usually no identifiable individuals who are responsible for copying for various others).

Digital copying: Making an electronic copy from a print or digital work, including all the likely accompanying copyright related activities (transmission, display, performance).

Educational uses in a digital environment: The educational interactions with copyrighted materials necessary in the digital environment: browsing works; downloading portions of works; transmitting portions of works; printing hard copies of portions of works. This definition reflects a "merger" of the different categories of copying in the print environment.

Educational uses in a print environment: The typical educational types of copies necessary in the print environment: Photocopies for coursepacks; reserves; research copies; personal copies; interlibrary loan and document delivery copies; administrative copies.

Institutional copying: Copying by institution personnel for educational or institutional purposes.

Long-term: 8 to 20 years

Mid-term: 4 to 7 years

Personal copying: Copying by individuals for their own educational or personal purposes.

Photocopying: A particular kind of print copying: making a print copy from a print original.

Print copy: Making a "hard-copy" of a print or digital work.

Short-term: 1 to 3 years

Transactional license: A license that requires the licensee to remit fees based upon an accounting of individual items copied.

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University of Texas System Office of General Counsel