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Copyright Crash Course

Implementing a Copyright Policy

Implementing a Copyright Policy

Implementing a comprehensive copyright policy

The manner and means of access to and use of copyrighted works is undergoing dramatic change. We must assume that the way universities use copyright materials today will change too. It may be difficult to agree upon the rate of change, and now that the infrastructure is in place the rate will likely change. Nevertheless, to comply with copyright law, we must identify as closely as we can what our future needs will be so 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 in the 21st century.

We should expect major shifts along the following axes within the next decade:

  • From institutional to personal copying
  • From photocopying to printing out a copy of a digital work (print copying)
  • From photocopying to digitizing (involving duplication, transmission, display and performance)
  • From acquiring bare access and seeking additional permission to use works to acquiring comprehensive 
  • Access (access that includes the right to make most expected educational uses of works in a digital environment)
  • From for-profit print to a healthy combination of for-profit and nonprofit electronic publication of scholarly works

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:

  • Not all universities will move along the axes at the same rates
  • Many universities have not yet come to terms with the scope of their responsibility for copyright permission
  • Fees or who should pay for additional costs to use works
  • Both subscription licenses and transactionally-based licenses have their drawbacks, risks and costs as well as benefits
  • There are different opinions about exactly what "short-term" and "long-term" mean
  • Scholarly communication issues are intimately interwoven with issues of tenure, promotion and compensation
  • Some factors that are relatively unpredictable could materially alter basic underlying assumptions: 
    • Technological change
    • Legal change
    • Rapidly evolving business models

Nevertheless, it is time to get started.

Education: distinguishing what's fair use from what needs permission

There is considerable online help for determining fair use. Just Google "fair use." The charge to administrators, however, is more difficult than that. You must figure out how to get people who need it to look for it, and make it easy to get permission when fair use is not enough for a proposed use. A thoughtful, realistic and widely disseminated copyright policy is the most important first step in this undertaking. Putting information online is a good first step, but it is not enough. The Crash Course has been online for more than 15 years and there is still a need for copyright education on campus.

The easiest thing to understand is that fair use does not cover all our activities. These are examples of the kinds of activities that probably require permissions of some sort on most campuses:

  • Photocopies. Many universities already license some or all of their copy center photocopying activities such as coursepacks; their interlibrary loan photocopying activities that exceed the copying permitted by Section 107; document delivery services; some reserve photocopies; and sporadically, other copies.
  • Digitizing, displaying and transmitting analog works. As the demand for electronic reserves and course materials increases in the short to mid-term, libraries and faculty need permission to digitize and distribute analog materials electronically when the amount used or the manner of presentation exceeds the bounds of fair use or other statutory exemptions. The Copyright Clearance Center can grant permission to digitize, display and transmit print works
  • Using digital works beyond the terms of an access license. Universities license huge amounts of electronic information by acquiring it directly from the publisher or from aggregators who have combined it into a database. If universities are not careful, however, they will find they have acquired this material in a manner that precludes the uses they may be expected to accommodate. Careful attention to the details of software and database licenses is very important.

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.

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