AALL: We Don’t Need Copyright to Put an Article on Our Network, Do We?

Steven Melamut, UNC-Chapel Hill Law Library: 1960s, libraries began to acquire photocopiers: brought out a great change in reserve policies. Professors would get back their photocopies at the end of a term; nobody kept records or checked to make sure it was the same photocopy (as opposed to what a student had made). There were guidelines that circulated, but they were very restrictive and not well known or followed.

Fair use: §107 specifically mentions “multiple copies for classroom use,” but it’s not clear whether that applies to reserves—students use them for classroom use. Fair use factors: it’s important to start with a copy you own, not an ILL copy. Market effect is also important: how difficult would it be to get a license? OTOH, if the material is out of print/the owner is difficult to find, you’re reasonably safe. Spontaneous one-time use is also reasonably safe. Commercial use/entertainment is not as easy to defend.

Course pack cases: clearly need permissions. But the Kinko’s and Princeton v. Michigan Document Servs. case were both against for-profit institutions. At the same time, Princeton presumed that there was an entitlement to fees.

E-reserves: began as homegrown system; people didn’t bother to password-protect, and if Google had existed they would have been out in the clear. Publishers feared that no one would ever buy the paper materials again. But for libraries, it was great: get out of the painful photocopy and file folder business. Remote access: students didn’t have to physically come to the library. Clear that we now need to restrict access, but unclear to what degree: limits to university sufficient, or does it have to be limited to class? Can you do it by class number, or do you have to limit it to individual student IDs?

One example: first-year med students are all required to take the same class, rotating through in five sections. If you buy permissions, are you buying it for the whole class, or do you have to buy it five times? Are you responsible if one student decides to download the material and put it up on his own website?

CONFU guidelines, 1996, tried to come up with e-reserves guidelines; came to a stalemate. Probably a good statement: they’re probably fairer than most others, but not official. ALA has a statement on e-reserves: says you should maintain fair use. Important caveat: most online materials are governed by licenses, not copyright, and licenses always trump copyright. If we are diligent about negotiating, we can write in a statement allowing use in e-reserves through content management systems. In the sciences, some licenses are coming out with that written in, but you have to look at the licenses. And keep in mind: some materials are governed by different laws: photographs/slides; music—go to the music library associations for guidelines; video—you are dealing with the DMCA and face DRM issues.

Ass’n of American Publishers has threatened litigation against Cornell, others. Came back with joint guidelines. Equated e-reserves and content management systems with coursepacks, so required permissions, but acknowledged the existence of fair use. Hofstra, Marquette, Syracuse also adopted policies under litigation threat—all private schools, not public.

Georgia State: sued in 2008 regarding electronic coursepacks, course management systems, electronic reserves. Feb. 2009: Georgia State changed policy.

CCC: claim to be a convenient means of getting permission. But extremely expensive, and didn’t cover all materials UNC uses. Even counting the person whose job it is to get permissions, it was cheaper for UNC to continue getting permission itself. Also CCC charges for things that are fair use, at least the first time they’re used.

Publishers want to protect permission income, and want permission for electronic use; libraries want to protect rights under copyright—if you don’t use fair use rights, they’ll disappear, and our budgets don’t allow us to be cavalier about paying for permission; and then faculty want to distribute the materials and feel that any educational use is fair use. You don’t know for sure what fair use is until after you’ve used the material, been sued, and gone to court. Fair use policies are determined by risk aversion.

Advice: when you’re already paying for access, putting links to Westlaw etc. is a good idea. But also use fair use so you don’t lose fair use. Tell students not to repost materials. Keep password restrictions. Remember e-reserves and fair use when negotiating contracts. At the end of the semester, terminate access.

Publishers think there’s no difference between e-reserves and course management software; the difference is library v. faculty control. He hears that faculty are not sending e-reserves in, but using course management software to post.

Kevin Smith, Scholarly Communications Office, Duke: he deals with copyright in relation to faculty and graduate students at Duke.

CMS allow faculty to create links or to upload readings and other content directly. Many readings are now offered through CMS, as well as video, music, and slides. Potential for many copyright issues due to lack of awareness, or self-help—faculty may not be happy with library’s rules. This can create liability for individual faculty members and the institution. It’s an issue of attitude.

Four responses: (1) all educational uses are fair use; (2) reserve policies are too restrictive; (3) I wrote it--it’s mine; (4) the perfectly logical one: if I can show it in class, I can show it on Blackboard. There is a sense in which the rules for transmissions were meant to mirror the classroom experience, but it’s not as simple as that would have you believe. Different rules regarding the amount of audiovisual material.

Georga State: Duke was also threatened in 2007. Three publishers challenged the use of e-reserves and course management systems. Publishers are asking for injunction, not damages. Georgia State argued that its new policy made prior acts irrelevant and sought a protective order from the court. They got the protective order: the amount of material already revealed in discovery regarding older practices was already sufficient to make the argument that the new policy isn’t all that different from the old. The new policy is quite assertive about fair use. A policy that was 100 pages long is now about 8. Partly because they now recognize that in the current situation their faculty have to understand at least the basics of fair use. In the past the library has taken care of this stuff, but CMS has changed the landscape.

So, institutional decisions: how much do you try to explain the four factors? How much do you apply it to specific uses or tech? Do you give a checklist (fair use checklist making the rounds)? Do you specifically mention spontaneity/single-time use? What kind of assistance do you offer? Recommend linking to licensed databases; offer help. These are decisions about how aggressive an institution wants to be about fair use.

Fair use checklist: He thinks it’s a bad document, creating the impression that fair use is mechanical. But fair use isn’t that way, and the checklist also very easy to manipulate. Note that a version appears on the CCC website. And he also thinks it’s virtually a required document, because decisions about what goes into a CMS is being made by RAs or administrative staff—nonattorneys, nonexperts. They have to make quick decisions about a huge pile of stuff. They desperately need help, and the checklist, for all its faults, helps them make a reasoned decision. And the value of a reasoned decision for a nonprofit higher education decision is that it provides a real benefit in a fair use analysis--§504(c)(2), which limits remedies, remitting statutory damages, for a wrong but good-faith fair use decision. Real reduction of risk!

How can the library help?

First, offer assistance creating links to licensing content: not necessarily obvious to faculty, who may not know about journal availability, URL persistence, and authentication for offcampus logins. Remind faculty that they may not own their own materials, and that they shouldn’t sign such agreements in the future! Provide a central service for CMS evaluation—let the library help even when CMS is used. We can make folks aware that we can help with decisions. At Duke, we try to encourage use of e-reserves because we have mechanisms in place to make a fair use decision and buy permissions when necessary.

CCC: First possibility, individual licenses. Not clear whether faculty will do this work. Second, Annual Campus License: covers e-reserves, coursepacks, faculty CMS, but not ILL. Not all publishers using CCC participate in the annual campus license, meaning that transactional permissions are still needed.

Music and video: implicates fair use, the TEACH Act, and the DMCA. Faculty ask to stream video through a course site and save class time. TEACH Act applies to distance education and to hybrid courses. Transmissions have to be an integral part of a class that is a regular part of systematic, mediated instruction. Less flexible than face-to-face exception, but most classes meet that requirement.

Big issue: portions. Can transmit all of a non-dramatic musical or literal performance. (All of a symphony, but not all of an opera.) Reasonable and limited portions of films or dramatic musical/literary performances. Real stumbling block (note interaction with DMCA: how is one to get that portion to show a relevant film clip?) Displays comparable to face-to-face teaching—which is probably anything you’d really want to do.

Other TEACH Act requirements (no litigation yet): restricted access; notice to users, copyright policy and educational efforts; reasonable TPMs to prevent student retention or downstream copying—his suggestions: streaming music or video; possibly thumbnail or low-resolution images; possibly disabled right-click to make it harder for students to download—might strengthen the fair use argument regarding e-reserves.

Fair use is more flexible than the TEACH Act, but the TEACH Act probably allows larger portions; fair use probably doesn’t allow you to use a whole film in most cases. Note that anti-circumvention still applies. Analog can be converted to digital for TEACH purposes. Permission can be difficult to obtain, though SWANK is beginning to license streaming films through CMS (it’s rather expensive).

Is there a point at which we need to stop thinking of film as “extra” to classes and start thinking of it as central? If the faculty member thinks the film is central to the class, sometimes the answer might be that the students should buy the film just like they buy the book.

Linda Gray, Nellson Mullins Riley & Scarborough, LLP

Fair use in the private law library. Attorneys want information so fast, coming out of law school where materials have been immediately available; they do not think about copyright issues. A partner is not going to spend time downloading an ANSI standard onto his desktop for use; it’s not practical. If the librarian got a digital copy, the attorney wants the digital copy sent to him/her, regardless of whether the purchase authorized presence on multiple computers. Observation: librarians have gotten more concerned about copyright compliance over the course of her career.

Special issues for private law librarians: Their use will likely be considered commercial, even if it’s only intermediate, following the Texaco case. Puts us in a bad situation, as the AALL guidelines warn.

Gray said, wrongly, that printing out a purchased digital copy licensed for one hard drive only and scanning it for an attorney’s use was circumvention. (I think she may have meant that it was an infringement, which is a much better argument, but she was talking about the DMCA.)

Very dangerous to sent out tables of contents and solicit attorneys to ask for copies of what they want, unless you have an agreement with the publisher—you can send out the tables of contents, just don’t do more than that.

To keep ourselves safe, we need to make sure we’re making only a legitimate number of copies and retaining copyright notice. She also copies the copyright agreement that comes with an article and sends that along with the article itself to the attorney who requested it.

CCC: Is expensive, and not comprehensive. Has heard that one publisher tries to write its licensing agreement with clients such that they can’t use the CCC, even though that publisher gets royalties from the CCC; that’s wrong.

Very few private firms have staff to get permissions. Not an option for most of us.