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Copyright and the University Community:Developing a Comprehensive Copyright PolicyA
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Traditionally, copyright law was the domain of a very limited group, which was just as well because legal scholars, including at least one Supreme Court Justice, had 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 earlier this 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-70's ostensibly addressed these changes, but then everything seemed to fall apart again in the 90's.
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 to the university community, it should matter alot, for we have alot 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.
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.
The current status of the law regarding the liability of entities like universities that provide the kinds of services to our communities that we do (Internet access and publishing capability) indicates that we can be held liable for infringements of faculty and staff, and perhaps even of students (unrelated third parties). In at least one case, a defendant's (netcom) failure to have and follow a policy for addressing allegations of infringement was a significant element in the court's analysis of liability.
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 no one reads legally enforceable. They also have had considerable success in obtaining passage of legislation to create new rights for users to infringe.
Still, potential litigation is really just a risk of cost. More real to most of us are the costs we absorb through the inflated prices we pay for books and journals that incorporate a substantial mark-up for campus and library copying that the publishing community believes is infringing.
Costs for subscriptions to scientific, medical and technical journals have been spiraling out of control. Many universities have cut back on monograph acquisition to purchase 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.
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 more effectively facilitate our research and educational mission.
Most of us recognize the value of patents; U.T. System has carefully developed a clearly articulated patent policy. Most universities have not, on the other hand, recognized that significant sums are lost because we don't have thoughtful copyright policies. We would save money if we did not give copyrights away and then have to buy them back. Further, using others' copyrights illegally has hidden costs that we are just beginning to understand, and could well have catastrophic costs if we were sued for infringement.
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.
Universities have for the most part altered the statutory scheme either through tradition or through policies that permit faculty ownership of their scholarly writings. 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 funds helped to create.
The allocation of ownership interests in the end products of university research is just the tip of the iceberg. Today there are more subtly nuanced variations on this once-straightforward theme:
Distance learning, more so than any other force on our campuses today, is focusing our attention on ownership and other interests in educational materials, for we can see that if we fail to assert our interests today, we may see the rights to use these works slip out of our hands like our rights in scholarly works did over the last 40 years.
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 journals. It also means that universities may need to acquire additional rights as well:
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. We have guidelines, but they tend to be more restrictive than sometimes necessary. Nevertheless, they are preferable to no help at all.
Ultimately, universities must focus upon licensing for those uses that go beyond fair use. We must learn more about transactionally based and blanket licenses, assess their strengths and weaknesses, and know when to exploit each type to most efficiently promote copyright compliance.
We also must move quickly to provide support for staff who must negotiate license agreements for initial access to electronic works, for to the extent we can acquire sufficient access upfront, we may not need additional permissions for the uses that we know we'll need to make of electronic works.
I recently attended several sessions of the Conference on Fair Use (CONFU). These experiences were real eye-openers. Publishers by and large are very wary of electronic 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 blasé 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?
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.
Thus, our compliance strategies should include:
We will address these further below.
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 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 as we head into 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.
There is considerable online help for 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. A thoughtful, realistic and widely disseminated copyright policy is the most important first step in this undertaking.
These are examples of the kinds of activities that probably require permissions of some sort on most campuses:
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.
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 blanket 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 print environment and that is why we will discuss these licenses.
In the more fully digital library, however, the need for these "additional" permissions should diminish. A database license's express terms or fair use should cover 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). A license granting or acknowledging such rights would meet most university copying needs and no resort to additional permissions would be necessary. Comprehensive "access" licenses are the subject of the next section where we discuss strategies to 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 blanket licensing for additional permissions even into the digital future.
The transactional licensing option 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 and copy centers and work harder to educate and inform students and employees of their rights and responsibilities under copyright law so that they know when to ask for permission.
Transactional licensing lowers our risk of lawsuits, but it does not eliminate it entirely for two reasons:
1) We usually rely upon fair use to exempt some copies from the obligation to obtain permission and pay fees. We will always have activities that publishers think are outside the scope of fair use, even if we feel strongly that such activities are within the bounds of fair use.
2) For most of us, copying is a highly decentralized activity taking place in literally hundreds or even thousands of sites around campus. This kind of copying is very hard to coordinate for the purposes of reporting and paying permission fees when needed.
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 increases.
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.
Blanket licensing could help us comply with copyright law, especially if a license covered 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, and other rights including rights to create, display and transmit digital copies and to make print copies from digital works. An ideal blanket license would 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.
On the other hand, 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 will diminish over the next decade. 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 a while, we would be better off licensing the right to photocopy as needed (as we do now). Considering that it may take 12-18 months to negotiate such a license, the long-term utility of such a great amount of effort to license only photocopies is questionable.
If a blanket license covers only copies beyond those permitted by fair use and other exemptions, it would pose the same kind of risk described above regarding our liability for the quality of fair use determination. [One of the most important issues in structuring a blanket license is how to take fair use into consideration. One possibility 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.]
Although blanket 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 blanket license covers, the better, because any remaining vulnerability to suit significantly diminishes the value of the license.
This licensor indemnity raises another concern as well: the most likely party to enter into a blanket license with a university would be an entity like the Copyright Clearance Center ("CCC"). It may not be in our best interests to be represented by the CCC in cases that may affect the scope of fair use.
Even were we to enter into a good, mid- to long-term agreement, that encompassed electronic rights there could still be some problems:
If we entered into a less than optimal license that did not include electronic rights (a short-term photocopy-only blanket license), the risk of lawsuit would remain very high since the license would cover less copying. Further, over time we would probably go on paying for photocopies we no longer needed as electronic access increased and our need for photocopies diminished.
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 or affect 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.
On one level, we may argue that the scope of fair use is relevant to the discussion of costs: if fair use adequately covered most every educational use in the electronic environment, universities would have no need for permission at an additional cost. Further, since properly negotiated licenses usually acknowledge the right of fair use, theoretically the price of access should not increase if fair use turns out to cover all additional uses not spelled out in an access license.
But, if publishers determine that they need more money to make their products available to universities and libraries, there is nothing save the market and what it will bear to prevent their increasing the price of access. Thus, ultimately, fair use at any scope may be irrelevant.
But we shall put aside that perplexing possibility for the moment and proceed to consider the strategies we might undertake to reduce our need for permissions:
- Several issues will need to be addressed in this context, however:
- Would these activities normally be permitted under most access licenses?
- If not, what would it cost to add them?
- Would it cost more or less to acquire such rights after acquiring access?
- Who should pay (should the costs be passed on)?
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 electronically distribute faculty-authored scholarly works, they should be able to cut costs of both access and use. The Internet has existed for years and has been utilized by the research community for a variety of purposes with little dramatic effect, but now it 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.
We owe it to ourselves to examine some of the premises underlying the way we do business in the print environment, especially since the balance we have achieved between the rights of owners and users may in truth be more like a stalemate. The escalation in journal prices 1 illustrates this point: users believe publishers charge a price that reflects what publishers think they are losing because users make fair use (and interlibrary loan) copies; users cancel subscriptions and make more copies because they cannot afford the journals and then publishers charge more because they perceive that fair use and interlibrary loan copies are further displacing subscriptions. 2
We should also look at the costs of making interlibrary loan copies. The Association of Research Libraries ("ARL") conducted a survey that had surprising results. "Extrapolating the results of the cost survey . . . suggests that in 1991-92 all ARL libraries spent well over $71 million on interlibrary loan operations: $26 million on operations to borrow materials for local users and $45 million to loan materials to other libraries." 3 We can only assume that these costs are continuing to rise.
Although solutions may not be particularly easy because they involve rather fundamental changes in our perspectives on the problems, the electronic environment does offer us an opportunity to break through considerable entrenchment. 4
Part of the problem is that university users and authors have limited publishing options in the print environment. But, the electronic environment offers a unique opportunity to change the dynamic. The university community can 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. 5 Competition is a powerful tool to bring down prices; canceling subscriptions and making copies seems to have the opposite effect. We should capitalize on the strength that we have naturally because we are all part of the same enterprise. 6
As the disturbing developments in scholarly publishing demonstrate, our lack of awareness of the consequences of ignoring our interests in copyrighted works has been disastrous. Let us not make the same mistake with respect to our interests in the educational materials that will soon be the backbone of our distance learning enterprise. We must clarify ownership in these works and assert the university's legitimate interests in making these works available to our students and recovering the university expenditures that bring them into existence if they are owned by faculty members.
As for scholarly works, the Association of American Universities Intellectual Property Report suggests 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." Whether alternative distribution systems develop by conscious design or simply naturally evolve from practical use of the medium, it seems clear that there could be multiple "tiers" of scholarly publication, and with respect to the greater body of copyright works, multiple tiers of publication generally.
This is the premise of a new ARL publication, "Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing," edited by Ann Okerson and James O'Donnell. The book captures an Internet discussion on the future of the scholarly journal, engaged in by scholars, librarians, and publishing experts. It examines a fascinating proposal, well worth consideration. More recently, the Pew Higher Education Round Table sponsored a discussion among a number of university administrators who considered these issues. The report of this discussion appeared in the Spring, 1998 issue of Policy Perspectives. My own summary of the discussion is available also..
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. 7
Examples include:
The University of Texas System has developed a Copyright Management Policy to guide its steps along this path.
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. There is some risk of harm to the relationship between libraries and university presses, certainly to the relationship between universities and for-profit publishers, but if we 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 will be better able to find solutions wherein our libraries, authors and presses can be partners rather than adversaries.
For purposes of this discussion, the following words 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.
1 Nicola Daval, Rising Prices Continue to Plague ARL Libraries, ARL Newsletter, May, 1994, pp. 1-2. Serials purchased in ARL libraries over the period 1986-1993 were down 5% while expenditures were up 92%; monographs purchased were down 23% while expenditures for same were up 16%. Id. at 1.
2 The Clinton Administration's Working Group noted that legitimate users of copyrighted works pay higher prices to cover infringing uses (Green Paper at p. 115). To the extent that fair use and interlibrary loan copies are perceived as infringing, this principle applies here as well; Texaco, Jacobs, J., dissenting, notes as well that serials prices for institutional subscriptions are twice those for individuals. Texaco, Jacobs, J. dissenting at __. The "fuzzy" boundaries of fair use and interlibrary loan contribute to the perception of infringement: indeed, fuzzy boundaries give those on each side much reason to believe that the other side's activities near the boundary are actually "over" the boundary.
3 G. Jaia Barrett, The Cost of Interlibrary Loan, ARL Newsletter, January, 1993, pp. 1-2.
4 For example, many commentators have suggested that it is appropriate at this time for universities to take more control over copyrights in scholarly works; for faculty to utilize electronic networks to communicate directly with their colleagues; and for university presses, libraries and computer science departments to collaborate to offer alternatives to for-profit publication of scholarly works. Where subscribing and photocopying are irreplaceable, broadly negotiated blanket license agreements may be more cost effective than transactionally based permissions fees. See Will We Need Fair Use in the Twenty-First Century? from Filling the Pipeline and Paying the Piper, Proceedings of the Fourth Symposium on Scholarly Publishing on the Electronic Networks, Spring, 1995, and Copyright in the Library: Scholarly Electronic Publishing, both available electronically at the Copyright Crash Course.
5 There is an undeniable irony in the cries of the university community that science, technical and medical journals are overpriced: it is by many accounts the university system of faculty rewards and incentives that has helped to put certain publishers in control. The Report of the Association of American Universities' Task Force on Intellectual Property Rights in an Electronic Environment (April, 1994) (hereafter, "AAU/IP Report") recommends that the university community begin to take advantage of the opportunity the electronic environment offers it, take some control over its copyrights and better manage the process of scholarly publication.
6 See generally, Colin Day, The Economics of Electronic Publishing: Some Preliminary Thoughts, from Gateways, Gatekeepers and Roles in the Information Omniverse; Proceedings from the Third Symposium, November 1993; AAU/IP Report.
Jean-Claude Guedon, in remarks before the 4th Symposium on Scholarly Publishing on the Electronic Networks (November 1994) suggested that since the public funds most research at one end of the research activity continuum and subsidizes libraries to purchase the results at the other end, scholarly publication and library functions could theoretically merge and eliminate the transaction that seems to interfere with the unity of an essentially public undertaking.
7 For more information on scholarly publication, see Copyright in the Library: Scholarly Publication.
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