LEGAL ISSUES IN DEVELOPING DIGITAL LIBRARIES Applying Copyright in Scholarship and Instruction Gail McMillan Digital Library and Archives, University Libraries, Virginia Tech Appalachian College Association 2004

US Constitution, Article I, Sect. 8 Promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Copyright Law: U.S. Code, Title 17 © Section 102: Original authorship stabilized © Section 106: Exclusive rights of creators Limitations to exclusive rights © Section 107: Fair use © Section 108: Library services © Section 110: Instruction--TEACH Act –

Who owns the copyright? n Creators of original works n Creators' assignees n Employers: works for hire As of March 1, 1989, the copyright warning does not have to appear for a work to be legally copyrighted.

Rights of copyright holders 1. Reproduction 2. Modification 3. Distribution 4. Public performance 5. Public display Title 17 U.S.C. Sec. 106

Permission or license to use a copyrighted work is NOT required if n Work is a fact or an idea –Phone number, earth is round n Public domain –US gov doc; very, very old n Fair use – htm#test –TEACH Act

Public Domain Lolly Gassaway:

Fair Use © Myth: It's OK--it's for educational purposes. Before using someone else's work without permission, weigh ALL 4 FACTORS 1. Purpose and character of use 2. Nature of the copyrighted work 3. Amount, substantiality 4. Effect Title 17 U.S.C. Sec. 107

1. Purpose and character of use n Commercial or educational use n For profit or not n Degree of transformation; value added n For criticism, commentary, news reporting, teaching, scholarship, research FAIR USE 1 of 4

1. Purpose and character of use FAVORS FAIR USE   FAVORS COPYRIGHT OWNER NonprofitCriticism Commentary Commercial EducationalNews reporting Parody PersonalOther transformative use

2. Nature of the copyrighted work n Worthy of (extensive) protection? n Character of the work? –fact (information) or fiction (imaginative) Published facts weigh in favor of fair use Unpublished original expressions weigh in favor of seeking permission FAIR USE 2 of 4

3. Amount and substantiality n Use only what is necessary n Consider quantity and quality in relation to whole work © Myth: Copying just a little bit is OK. FAIR USE 3 of 4

Do you own the copyright to the you receive? TRUE or FALSE?

4. Effect n Harm to potential market or value of a work after a portion has been used separately from the whole FAIR USE 4 of 4

Is the letter you wrote to your high school sweetheart his/hers to publish? TRUE or FALSE?

It's OK to use someone else’s work as long as I give proper attribution. It’s free advertising. TRUE or FALSE?

It's publicly available on the web so I can use it without asking. TRUE or FALSE?

Fair use n Did the scales tip in your favor after weighing all 4 factors? n If not –Ask for permission –Use library services

Copyright permission services n Copyright Clearance Center –copyright.com n RSiCopyright – n Association of American Publishers – You asked but they never responded. You don’t have permission.

USC Title 17 Sect. 108: Why the library can but students/faculty can’t n Open to the public or to others doing research Notice of copyright n Reproduction or distribution without profit Reserve Services –Copying articles, chapters –Limiting to university community –Limiting to one term, not sequential Course Management Systems

n EReserve and Reserve (merging) n ETDs (Electronic Theses and Dissertations) –Request Publisher's Permission to Use Copyrighted Works. –You don’t have to give away all your rights to get published. n ILL (InterLibrary Loan) and Document Delivery n Center for Alternative Media (moved to Circulation) –Fair Use of educational multimedia –CCUMC Consortium of College and University Media Centers n Photocopy Warning –Post warning re © restrictions (law) University Libraries’ Policies

EReserve Copyright Guidelines n Why evaluate? – Unknown origin of existing policy – Align policies branch, main library Reserve Desk, EReserve – Faculty questions n Collaborators within the Library –User Services: Reference, Instruction, Circulation, Reserve –Digital Library and Archives (SCP) n Review by University Counsel

EReserve Copyright Guidelines [i.e., without asking permission] n Books – 1 chapter from one book – applies to edited collections of readings, essays n Articles – 1 article from one issue of one title – applies to journals and newspapers n US government publications –public domain –reproduction is unlimited n Consumables: NOT appropriate for EReserve n Coursepacks: NOT appropriate for EReserve

EReserve Copyright Guidelines Faculty must –Acknowledge reading Copyright Guidelines –Agree to comply –One term only –Beyond Guidelines, must receive written permission –Publishers' addresses –Sample permission request letter

EReserve Copyright Guidelines Students may – Make one copy (e.g., download, print, photocopy) for personal reading, research, or education preserve author’s name, title of the work, copyright notice other use is illegal – Not mislead others about the views or competence of the author

EReserve Copyright Guidelines n Inform instructors – Local newspapers articles – Educational forums – Library liaisons to departments, colleges n Policing – Inconsistent: monitoring and honor Reserve Desk vs. EReserve and branches

Copyright for Instruction n USC Title 17 Section 110 –Limitations to certain performances, displays –Face-to-face classroom settings n Broadened by TEACH Act (Nov. 2, 2002) –Must have institutional copyright policy –In distance as in classroom n Fair use

TEACH: Technology Education and Copyright Harmonization Act n Fair use standards in digital education n Modifies and addresses existing copyright law: –Accredited nonprofit educational institution –Mediated instruction –Integral part of class session –Limited to enrolled students –Accurately informed about copyright compliance –Reasonably prevent Retention beyond course Unauthorized further dissemination

TEACH Act: Works allowed n Show entire nondramatic literary works –News, poetry, speech, charts, maps n Show entire nondramatic musical works n Everything else in reasonable and limited portions –Plays, movies, operas, TV shows, choreography USE IN DISTANCE LEARNING CLASS THE SAME AS IF IN THE CLASSROOM

TEACH Act--You must not use n Works marketed primarily for distance education n Unlawfully made or acquired copies n Materials meant for additional study outside of class –EReserve, Reserve, CMS (course management systems)

TEACH Act--You must n Transmit as an integral part of class session regular part of systematic, mediated instruction n Use copyrighted materials only when directly related to the lesson n Limit access to students enrolled in the course n Have an institutional copyright policy & inform students about © n Block further reproduction, dissemination

Copyright Resources n Copyright Management Center (IUPUI) – n Crash Course in Copyright (UTAustin) – n Library of Congress, Copyright Office – n Legal Information Institute (Cornell) – n Stanford University Libraries – n TEACH Toolkit –

Additional comments/discussion? Applying Copyright in Scholarship and Instruction Gail McMillan: Digital Library and Archives, University Libraries, Virginia Tech Appalachian College Association 2004