Copyright Crash Course

The internet changed everything

Everyone 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.

Institutional copyright to-do list

• Understand the issues
  • Why do we have to care about copyright?
  • Who owns what?
  • Rules for using others' works (copyright compliance)
    • Guiding users about fair use
    • Licensing rights when we need them
• Implement a comprehensive copyright policy
  • Provide needed guidance for faculty, students, and staff
    • Clarify ownership issues
    • Explain fair use and other educational exemptions
  • Develop strategies to accommodate (for now) and reduce (for future) our need for permission
    • Transactional and subscription licensing
    • Acquiring electronic access that covers predictable user needs
    • Assessing the university's role in scholarly communication
      • Retaining and taking advantage of rights to publicly archive scholarly works
      • Taking a more active role in the management of scholarly communication
        • Building and supporting open infrastructure
        • Supporting open access to research results and data

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.

In order 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. In addition, a policy developed 10 or 20 years ago will not serve us well now.

Understanding the long-term impact of any policy decision is also complicated by the following facts:

• 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

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

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 people who need the information to look for 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. Putting information online is a good first step, but it is not enough. The Copyright Crash Course has been online for almost three decades 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:

• Digitizing, displaying and transmitting analog works. As the demand for online course materials increases, libraries and faculty need permission to digitize and distribute 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.
• Photocopies. While photocopies have diminished in importance, they are still a part of university activities. 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.

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 library materials. Our potential liability should give us all the incentive we need to address these issues directly.

Please see Definitions for clarification on any terms