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

Copyright Management

Copyright affects you.

• The library's business is to facilitate access to information
  
  
• The electronic environment creates new opportunities and presents new risks
  
  
  • Electronic access
  • Electronic publishing
  • Electronic distribution
    
    
• So much to read, so little time...

Overview

• Copyright law basics
  
  
• Ownership of copyrights
  
  
• Using others' works
  
  
  • 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

The Basic Scheme

• The law gives certain rights to copyright owners
  
  
• Fair Use and the Library exemption are the “play in the joints”
  
  
• Sometimes you have to ask for permission

Copyright Law

• What does copyright protect?
  
  
• When does it begin and end?
  
  
• What does it mean to owners?
  
  
• What does it mean to users?
  
  
• What are the library's special rights to copy?
  
  
• What are the library's rights to lend?
  
  
• What is fair use?

Fair Use

Section 107 of the Copyright Law describes four factors that must be taken into account in analyzing whether copying is fair use.

• Character of the use
  
  
• Nature of the material to be copied
  
  
• Amount and importance of the part copied
  
  
• Effect on market for permissions

Ownership

• Author is usually owner
  
  

• Employer is owner when:
  
  
  • Work created by employee within scope of employment
  • Work created pursuant to contract with assignment

• New challenges
  
  
  • Scholarly works implemented in software
  • Multimedia courseware
  • Telecourses and distance learning
  • Changing nature of authorship (joint and collaborative electronic works)
  • The crisis in scholarly publishing (monographs and serials)
    
    
• Asking for permission/getting a release

Library Copying

• Preservation and replacement in the digital age
  
  
  • White Paper recommendations for digital archiving
    
    
    • Published works
    • Unpublished works
      
      
• Patron requests
  
  
  • Research copying
    
    
    • Texaco and the Incredible Shrinking Fair Use
      
      
      • The relevance of Texaco in the University environment
      • U.T. System Rules of Thumb for research copies
        
        
  • Reserve room operations
    
    
    • Conference on Fair Use (CONFU) draft ereserve guidelines (May 1996)
      
      
      • Quite reasonable overall, but opposed by AAP, among others
      • U.T. System Rules of Thumb for electronic reserves
        
        
• Interlibrary Loan and Document Delivery
  
  
  • National Interlibrary Loan Code for the United States 1993
    
    
  • ALA Guidelines and Procedures for Telefacsimile and Electronic
    Delivery of Interlibrary Loan Requests and Materials
    
    
  • CONFU memo exchange on Interlibrary loan
    
    
• Asking for permission/getting a release
  
  
• 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
  
  
  • Lawfully acquired copies can be disposed of without the consent of the copyright owner
    
    
• Digital works
  
  
  • The necessary reproduction involved in distributing a digital copy must be authorized by law
    
    
    • Fair Use (Sega v. Accolade); Section 108
      
      
• Can the digital library only "lend" fair use (Section 107) and Section 108 authorized copies?

Licensing Access to Digital Works

• How will the digital library differ from today's library?
  
  
  • Digital libraries collide Sections 107, 108, 109 and Contract law: How will it all shake out?
    
    
    • Acquisition under contract
    • Patron access is controlled by contract
    • Will we need or be able to rely on Fair Use or Section 108?
    • What about interlibrary loan and document delivery?
    • What exactly will it mean to lend something?
      
      
• Online database and software license agreement checklist
  
  
• "Just Sign It And Send It Back!" - ARL Licensing Workshop
  
  
• Liblicense - Yale University Resource for Librarians

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
  
  
  • Libraries (Universities) subsidize the current model by buying subscriptions
  • Rates of increase in subscription prices have far exceeded rate of inflation
  • Ultimate consumer has had little or no knowledge of rising prices
    
    
• Authors, libraries, scholarly presses and computer departments have begun to team up to find solutions
  
  
  • Online journals and monographs
  • Departmental preprint servers
  • Increasing University awareness of the problems
    
    
• ARL/AAU Task Force suggests a more active University role in copyright management
  
  
  • The MIT "Shop Right"
    
    
    • In general, MIT asserts ownership in intellectual properties created by its employees within the scope of their employment, but excepts scholarly works
    • Reserves for MIT a nonexclusive right to use 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
  • 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 may 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

Summary

• Electronic environment offers new opportunities
  
  
  • to turn repositories into resources
  • to make scholarly works more widely and easily available
    
    
• Library personnel must know copyright law to facilitate University mission within legal bounds
  
  
• The Copyright Crash Course offers online copyright support

Recommended Readings:

• Kenneth Crews, Copyright, Fair Use, and the Challenge for Universities. Chicago, University of Chicago Press, 1993.
• Laura N. Gasaway and Sarah K. Wiant, Libraries and Copyright: A Guide to Copyright Law in the 1990's. Washington, DC, Special Libraries Association, 1994.
• Michael Matthews and Patricia Brennan, editors, Copyright, Public Policy, and the Scholarly Community. Association of Research Libraries, 1995.
• Ann Shumelda Okerson and James J. O'Donnell, editors, Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing. Association of Research Libraries, 1995.
• L. Ray Patterson and Stanley W. Lindberg, The Nature of Copyright; a Law of Users Rights. Athens, GA, University of Georgia Press, 1991.

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