Copyright and the Internet: What Should Universities Be Doing About It? Georgia Harper Copyright Attorney University of Texas System

Widespread use of electronic communication has increased the possibility of infringement exponentially. Addressing the issues is no small task; it requires concerted, coordinated and committed action. So what should we be doing about copyright?

I address these issues for National University's Center for Law, Education, and Public Policy in an online presentation accessible at:

http://www.utsystem.edu/ogc/intellectualproperty/copyint.htm

This paper is an executive summary of the presentation.

Copyright To-Do List

Recognize liabilities. Many University administrators are unaware of the magnitude of the problem. Further, with all the issues facing them today, they may be hard-pressed to attend to copyright issues. This makes the first step an easy one: provide information about University liability. Here it is: Universities are the ones that get sued for the infringements committed by faculty, students and staff.

Provide guidance. Once convinced that we have much to lose by doing nothing, the University must next decide what to do. The first priority should be education. Faculty, students and staff will need to know much more than they do now to effectively reduce the University's risk of lawsuit. Copyright compliance doesn't just "happen." It requires information and it takes work.

Develop a long-term permission strategy. Even if people know what's fair use and what isn't, they'll need to know how to get permission for those uses that require it. There are two strategies for getting permission. One is to make it easy by establishing connections with collective rights organizations like the Copyright Clearance Center. The other is to acquire sufficient rights when licensing digital information to make getting permission for ordinary uses unnecessary. Once a work is online, students, staff and faculty should be able to make all customary educational uses of it under the terms of the access license.

Develop a comprehensive copyright policy. Ultimately, Universities will find that they have users' copyright concerns and owners' concerns too. After all, we are authors, distributors, publishers and consumers of the works that are the central focus of scholarly communication: research results and educational materials. Our policies about how we will manage copyright issues need to address all these concerns, not just fair use of others' works.

Fine Points

As indicated above, the presentation I am making today is online. It contains links to other documents and resources. The information I present to you will remain available to you at any time you wish to access it, updated as things change. I urge you to refer to the presentation online when you actually have a copyright problem. That's when you'll find it most helpful.

In addition to setting out broad recommendations for comprehensively addressing copyright issues on campus (the Copyright To-Do List), the presentation offers specific information about:

Direct and indirect infringement liability. We have both kinds of liability because we are publishers and service providers. Service provider liability is the scary one. While we should accept responsibility for the actions of our faculty members and staff who may post documents on the Web as part of their job, it strikes most of us as quite problematic to accept responsibility for the actions of students over whom we have little or no control

Developing a policy to address complaints of infringement. This is what you do to minimize service provider liability. So far the law suggests that we must only take action if notified that a Web page is infringing. It is quite likely that this issue will be taken up by Congress this year and we should be prepared to assert our interests or we will have AOL deciding for us how we will respond to complaints.

Copyright law basics. There are a few things you really have to know. They are here. Well, actually they are at Cornell, for the most part, but they are also here...

How different theories of fair use affect interpretations of the scope of fair use. This discussion is somewhat legalistic, but it is so important that I felt it should be included. There is intense disagreement about the scope of fair use. As it turns out, there is a logical basis for that disagreement. One's impression of fair use depends on what purpose it serves and whether there are other ways to serve that purpose. The courts seem to be leaning towards one interpretation over another. What does it mean for us on campus?

Applying the basics to cyberspace. How will copyright work in the digital library? Will we still be making coursepacks? Research copies? Placing items on reserve? Who will be making copies? What will it mean to "make a copy?"

Transactional and blanket licenses. There are different ways to seek and pay for permission to use another's work. Most of us are familiar with transactional licensing: we keep track of each transaction and remit fees on that basis. Blanket licenses are not common, but they have enormous appeal because they promise less administrative burden - no tracking. There is a place for each in the digital future.

Comprehensive access licensing. This is the next copyright frontier. Comprehensive access licensing can completely eliminate the need to ask for permission. University personnel who negotiate access licenses need as much help as we can give them to get the rights to use digital works our faculty, students and staff need.

Resources for developing a comprehensive copyright policy. A comprehensive policy must address the University's role in scholarly communication, clarify who owns what, provide guidance for faculty, students and staff about fair use and other exemptions, and make it as easy as possible to get permission when fair use is not enough. This section provides links to many resources that will help inform policy development.

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