Copyright Law in the Digital Library Georgia Harper Office of General Counsel University of Texas System

Overview

• Why Copyright?

• When Does Copyright Become an Issue?

• Who Owns What?

• How Does Analog Fair Use Apply to Digital Works?

• Specific Library Copyright Issues

  • The archival collection
  • I found it on the Internet
  • Digitizing analog images
  • Incorporating others' works into new works
  • Reserves
  • Archival copying
  • Copying for patrons: Research copies, interlibrary loan and document delivery
  • The lending right (first sale doctrine)
  • Licensing access to materials
    
    

• Scholarly Electronic Communication

Copyright Management

Copyright affects you.

• The Library's Mission is to Facilitate Access to Information

• Electronic Access Increases Opportunities

  • Easier access to others' works
  • Wider dissemination of university creations
  • Increasing quantity and quality of digital content
    
    

• Electronic Distribution Increases Exposure to Liability for Copyright Infringement

• Try Out Our Copyright Crash Course Tutorial to Improve Your Odds!

What Makes Copyright an Issue?

The Crash Course in Copyright

If you want to copy, distribute, create derivatives of or display
or perform others' works, you need to think Copyright.

First, The Basic Scheme

• The Law Gives Certain Rights to Copyright Owners

• Fair Use is the "Play in the Joints"

• Sometimes You Have to Ask for Permission

• Sometimes You Are the Owner!

A Few Particulars

• What Does Copyright Protect?

  Original works of authorship fixed in a tangible medium of expression.
  
  

• When Does it Begin and End?

  Today, it begins at the moment of fixation in a tangible medium of expression and ends at the expiration of 70 years after the death of the author. Different rules apply to older works, however, and there are special rules for works-for-hire.
  
  

  • Recent changes in Copyright Term Extension Act allow libraries to use certain works in their last 20 years of protection
    
    

• What Does it Mean to Owners?

  Owners have exclusive rights to make copies, create derivative works, distribute, display and perform works publicly.
  
  

• What Does it Mean to Users?

  If the law protects a work you wish to use, you must ask for permission from the copyright owner unless your planned use is covered by one of the law's exemptions, such as fair use.
  
  

• What is Fair Use?

  Wouldn't a crisp, clear answer to that one be nice?

Ownership

• Author is Usually Owner

  • More than one author may be joint owners of a work
    
    
    • Independently copyrightable contributions
    • Mutual intent that authors will be co-owners of the work
      
      

• Employer is Owner When:

  • Work created by employee within scope of employment
  • Work created pursuant to contract with assignment
  • Work properly documented as a work-for-hire
    
    

• System Intellectual Property Policy

  • Permits author to own scholarly and educational works within field of expertise, unless the author was required to create the work
  • If the University has an interest in scholarly or educational works, it should be set out in an agreement to avoid confusion and misunderstanding
    
    
    • Ownership interest;
    • Right to use;
    • Right to reimbursement of contribution; and/or
    • Right to share in proceeds
      
      

• New Challenges

  • Faculty members hired or required to create certain materials
    
    
    • Recent revisions to Section 2.3 and 2.4 of the U.T. System Intellectual Property Policy
    • Using an acknowledgement to clarify unusual circumstances
      
      
  • Multimedia courseware
  • Changing nature of authorship
    
    
    • Inter-institutional collaborations
    • Student contributions
    • Work-for-hire contributions (contract labor)
    • Non-faculty University employees
      
      
  • Significant resource reimbursement
    
    
    • New Regental Policy on Copyright Management
      
      
  • The crisis in scholarly publishing (monographs and serials)
    
    

• The Copyright Crash Course Tutorial - Ownership Issues

Fair Use

Libraries and their patrons have rights of fair use under Copyright Law.

Section 107 of the Copyright Law includes illustrations of potential fair uses and describes four factors that must be taken into account in analyzing whether a use is fair.

Examples: Criticism, comment, news reporting, teaching, scholarship and research

The four factors:

• Character of the Use

• Nature of the Material to be Copied

• Amount and Importance of the Part Copied

• Effect on Market for Permissions

Getting Permission

• Collective Rights Organizations

• Contacting the Owner Directly

• What if the Owner Has Changed?

• Be Sure the Person Granting Permission Has Authority

• Should Permission be in Writing?

• What if you Have Difficulty Identifying the Owner?

• What if the Owner is Unidentifiable or Unresponsive?

Applying Analog Fair Use
to Digital Works

• Fair Use Is Not Just For Copies: It Applies to:

  • Making copies of copyrighted works
  • Making derivative works (for example, digitizing slides)
  • Distributing works, including electronic distribution
  • Displaying and performing works publicly, including over networks
    
    

• Normally, Cases Help Us Understand Fair Use in Various Contexts

  But, No Cases Directly Address Fair Use of Others' Works
  in a Nonprofit Educational Environment

  • Commercial fair use cases - trend is towards narrowing the scope of fair use (Texaco; Michigan Document Services)
  • On the other hand, Sega/Nintendo cases indicate that it is fair use to make a copy in order to get at unprotected elements
  • Bridgeman v. Corel - exact duplication of public domain work lacks sufficient originality to qualify for copyright protection under Britain's copyright law
    
    

• CONFU Educational Fair Use Guidelines

  • Lack of consensus
  • Electronic Reserves
  • Multimedia Fair Use Guidelines
  • Educational Fair Use Guidelines for Digital Images
  • Distance Learning Guidelines
    
    

• UT System Rules of Thumb

• The Good Faith Fair Use Defense

  • Having a policy really helps!
    
    
    • Developing a policy
    • Implementing a policy
      
      

• If Fair Use Does Not Apply, Seek Permission

• The Copyright Crash Course - Fair Use Issues

• The Copyright Crash Course - Permission Issues
  

Specific Library
Copyright Issues

• Look at All This Neat Stuff in the Library/Archive/Special Collection!

  • Who owns the copyright in all that neat stuff?

    Libraries and museums have not typically acquired copyright along with the material artifact.
    
    

  • Is it in the public domain?
  • Can we acquire the rights we need to use the materials now?
  • What might be fair uses of protected archival materials?
    
    

• I Found It On the Internet

  No one cares what I do with it, right?

  • Use is governed by the law and an implied license
  • Modifications to the implied license: Any explicit statement of permitted or prohibited uses
  • Additional uses outside the license
    
    
    • Uses permitted by Sections 110(1) and (2)
    • Multimedia Fair Use Guidelines
    • Educational Fair Use Guidelines for Digital Images
    • Distance Learning Guidelines
    • UT System Rules of Thumb
    • Getting permission
      
      

• Digitizing Analog Images

  • Educational Fair Use Guidelines for Digital Images
    
    
    • Individual requests
    • Institutional conversions to digital archives
      
      
  • Image management: Understanding image collection unique concerns
  • UT System Rules of Thumb
    
    

• Incorporating Others' Works into New Works

  • Scholarly works
    
    
    • Copyright on the Internet
    • Publisher liability
    • Fair use
      
      
      • Comment and criticism: Incorporating facts, charts, diagrams, illustrations and direct quotations
      • Links to others' works: General consensus is that while links are not an infringement, "inlining" others' works is
      • Citation: Always necessary, but does not substitute for permission where fair use would not cover the use
        
        
  • Multimedia works for classroom use
    
    
    • Educational Fair Use Guidelines for Multimedia
    • UT System Rules of Thumb
    • Performance rights for transmissions
      
      
  • Asking for permission/getting a release
    
    

• Electronic Reserves

  • Draft ereserve guidelines (March 1996)

    Most CONFU participants could not agree on the scope of fair use for electronic reserves. Copyright owner participants called into question whether electronic reserves without permission are legal at all.
    
    

  • ALA position statement

    ". . . ALA does not recommend formal guidelines for fair use in a digital
    information environment at this time."

    "ALA will, together with other library associations, investigate the development
    of guiding principles and examples of current practices in the appropriate use of,
    and in licensing agreements for, digital information resources."
    
    

  • UT System Rules of Thumb for Electronic Reserves
  • The Good Faith Fair Use Defense
    
    
    • 17 USC 504(c)(2)
    • Allows a court to refuse to award any damages even if the copying at issue was not a fair use
    • Applies if university personnel who copied material reasonably believed that the copying was a fair use
    • If it applies, it makes both the individual and the institution very poor prospects for a lawsuit
    • If our employees follow our fair use policy, they will be indemnified by UT System
      
      
  • Note that the DMCA has no effect on electronic reserves
    
    

• Library Copying

  • Archiving in the digital age
    
    
    • Digital Millennium Copyright Act made several changes to Section 108
      
      
  • Patron requests
    
    
    • Research copying
      
      
      • Texaco shows how the scope of fair use shrinks when permission is easily available
        
        
        • U.T. System Rules of Thumb for research copies
          
          
  • Interlibrary loan and document delivery
    
    
    • CONFU participants agreed to disagree
      
      
  • Sony Bono Copyright Term Extension Act contains a limited library exemption
  • The merger of coursepacks, electronic reserves and the digital library collection: will fair use cover all expected institutional and personal uses?
    
    

• The Lending Right

  • Print works
    
    
    • Under Section 109, lawfully acquired copies can be disposed of without the consent of the copyright owner. This is the legal basis for our public library system.
      
      
  • Digital works
    
    
    • Copyright owners do not want anyone, including libraries, to have the right to dispose of (to lend) digital works
      
      
      • This is reflected in the new changes to Section 108
      • This means libraries have to get permission to make and distribute a digital copy made from an analog work, unless fair use or some other legal exemption applies
        
        
        • In effect, the digital library may only lend its digital copies of analog works pursuant to Section 107, fair use
          
          

• Licensing Access to Digital Works

  • How will the digital library differ from today's library?
    
    
    • Digital libraries collapse Sections 107, 108, 109 and Contract law: How will it all shake out?
      
      
      • Libraries acquire digital materials under contract
        
        
        • Patron access is controlled by contract

          It is possible that in the future, contract provisions will entirely replace copyright law as the source of rights to use others' works
          
          

      • Will the need for coursepacks and electronic reserves disappear?
      • Will contracts that eliminate fair use be enforceable?
      • Will there be any need for fair use in a digital library?
      • What about interlibrary loan and document delivery?
      • What exactly will it mean to lend something?
        
        
  • Is it OK to just sign licenses and send them back?
  • Online resources for negotiating database and software license agreements

Scholarly Electronic
Publication

• Universities Produce, Distribute, Maintain and Consume Scholarly Works

• Costs to Buy Back the End Product of University Research Have Far Outstripped Libraries' Financial Resources

• Authors, Libraries, Scholarly Presses, Computer Departments and National Organizations are Seeking Solutions

  • Departmental preprint servers
  • Viable nonprofit electronic publishing alternatives
  • Pew Higher Education Roundtable conclusions
    
    

• ARL/AAU Task Force Suggests a More Active University Role in Copyright Management

  • The idea of a "Shop Right"
    
    
    • In general, an institution would assert ownership in intellectual properties created by its employees within the scope of their employment, but would except scholarly works, reserving for the institution a nonexclusive right to use the scholarly works for university purposes
      
      
  • The University of Wisconsin-Madison's Faculty Senate Resolutions on Faculty Concerns on Copyright
  • The TRLN Model Copyright Policy
  • University of California discussion draft: Copyright Considerations for Faculty-Authored Multimedia Course Materials
  • UT System proposal for improving Copyright Management
  • Author reservation of non-exclusive electronic distribution rights
  • National repositories for scientific research to provide not-for-profit electronic outlets
  • A distributed national science and technology library
    
    

• Scholarly Communication Could Ultimately Operate Under a Different Copyright Paradigm From the Entertainment Industry

  • Upfront public/private funding of research and reporting of results
    
    
    • Replacing the "backend" funding method we currently use (buying the finished product)
      
      
  • Free electronic distribution to entire university community
  • Chargeable value (added by anyone who wants to commercially distribute a work) could be in other features besides content: "point of view," organizing principles, ability to offer interaction with authors, among others

Copyright Crash Course Tutorial

• Ownership

  • Geology 301
  • $15,000 University Grant
  • Media Center Technical Support
  • Student’s Computer Programming
  • Brother-in-law’s Graphics
    
    

    Who owns the course?
    
    

• Fair Use

  • Text and Graphics from 1990 Textbook
  • Background Music
  • Short Video Segment
  • Student’s Article
  • Licensed Materials
  • Online and Archival Photographs (some modified)
    
    

    How do you tell what is fair?

    What is the relationship between the statute and the guidelines?

    Who is liable in court if there is an infringement?
    
    

• Commercial Success (Permission)

  • Courseware Materials Were Successful on Campus
  • Others Became Interested
  • Publisher Had Questions about Copyright

    What happened to fair use?

    How do you tell whether an item is in the public domain?

    How do you get permission?
    
    

Summary

• Legalities Are in Tremendous Flux

  • The statutes
  • The caselaw
  • The beliefs of copyright owners
  • The practices of users
    
    

• Library Personnel Need Strong Administrative Support to Accomplish Their Mission in the Digital Environment

• Be Conscious of Your Use and the Value of Works to their Owners

  • Understand fair use, University policy, and the risks of using others' works
  • Use good judgment
    
    

• Establish Connections with Licensing Collectives

  • Get permission when you need it

• The Copright Crash Course Offers Online Copyright Support

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Intellectual Property Section | Office of General Counsel