1. Copyright in Scholarship and Instruction and an Open Access Primer http://scholar.lib.vt.edu/copyright/ http://scholar.lib.vt.edu/copyright/ Gail McMillangailmac@vt.edu Digital Library and Archives, University Libraries, Virginia Tech Feb. 6, 2012

2. U.S. Constitution Article I Section 8 Clause 8  [The Congress shall have power] "To 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."

3. Copyright Law: U.S. Code, Title 17  Section 102: Original authorship stabilized – when fixed in a tangible medium of expression  Section 106: Exclusive rights of creators Limitations to exclusive rights  Section 107: Fair use  Section 108: Library services  Section 110: Instruction--TEACH Act http://scholar.lib.vt.edu/copyright/

4. Who owns the copyright?  Creators of original works  Life + 70 years  Employers: works for hire  95 years from publications, or  120 years from creation  Creators' assignees

5. As copyright holder, you control  Reproduction  Modification  Distribution  Public performance  Public display EXCEPT…

6. Permission or license to use a copyrighted work is NOT required if  Work is a fact or an idea –Phone numbers, earth is round  Public domain –Does not mean the Internet/worldwide web –Intellectual property not owned or controlled by anyone US government documents It’s very old: http://www.unc.edu/~unclng/public-d.htmhttp://www.unc.edu/~unclng/public-d.htm  Fair use  TEACH Act

7. Fair Use Myth It's OK--it's for educational purposes. 1. Purpose and character of use 2. Nature of the work 3. Amount, substantiality 4. Effect Before using someone else's work without permission, weigh ALL 4 FACTORS VT Fair Use Analyzer Fair Use Checklist

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

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 –fact (information) or fiction (imaginative) Published facts weigh in favor of fair use Unpublished original expressions weigh in favor of seeking permission FAIR USE 2 of 4

10. 3. Amount and substantiality  Use only what is necessary  Quantity in relation to whole work  Quality in relation to whole work FAIR USE 3 of 4

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

12. Fair use: weigh each factor  VT Fair Use Analyzer VT Fair Use Analyzer  Did the scales tip in favor of fair use?  If not –Modify your use –Use library services: Title 17 U.S.C. Sec. 108  Ereserve Ereserve  Why not use Scholar? –Ask for permission

13. After you’ve checked n Sherpa RoMEO –publisher copyright & self-archiving policies –http://www.sherpa.ac.uk/romeo/http://www.sherpa.ac.uk/romeo/

14. Copyright permission services  Copyright Clearance Center –http://copyright.comhttp://copyright.com  Association of American Publishers –http:// www.publishers.orghttp:// www.publishers.org You asked but they never responded. You don’t have permission.

15. Orphan Works  Good faith, diligent, unsuccessful search  US Copyright Office report (2006-01) http://www.copyright.gov/orphan/orphanreport.pdf http://www.copyright.gov/orphan/orphanreport.pdf  The “Orphan Works” Problem (2008-03-13) – Statement of Marybeth Peters, Register of Copyrights, to House Subcommittee on Courts, the Internet, and Intellectual Property http://www.copyright.gov/docs/regstat031308.html  Legislation, amendments, no vote.  Assume it’s copyrighted

16. Copyright re Libraries: Sect. 108  Ground Rules – No commercial purpose – Open to outsiders – Notice on copies  Preservation copying  Photocopy Services: Copies for private study  ILL: copies for InterLibrary Loan http://www.ill.vt.edu/Copyrightinformation.htm  Reserve Services: copies for students in a course http://www.lib.vt.edu/services/circ-reserve/copyright.html

17. Copyright for Instruction  USC Title 17 Section 110 –Limitations of certain performances and displays –Face-to-face classroom settings  Broadened by TEACH Act (Nov. 2, 2002) –Technology Education And Copyright Harmonization –Must have an institutional copyright policy

18. TEACH Act  Fair use standards in online education environment  Modified existing copyright law for –Accredited nonprofit educational institutions –Mediated instruction –Integral part of class session –Limited to enrolled students –Accurately informed about copyright compliance –Reasonably prevent  Retention beyond course  Unauthorized further dissemination

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

20. TEACH Act--You must not use  Works marketed primarily for distance education  Unlawfully made or acquired copies  Materials meant for additional study outside of class –EReserve, Reserve, Scholar (i.e., CMS)

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

22. Copyright Resources from VT DLA  Copyright Homepage http://scholar.lib.vt.edu/copyright/  Library Copyright Policies http://scholar.lib.vt.edu/copyright/cpolicies.html  Fair Use http://scholar.lib.vt.edu/copyright/doesntsa.html#fairuse  Copyright and ETDs http://scholar.lib.vt.edu/copyright/cprtetd.html  Request Permission: Sample letter http://etd.vt.edu/howto/permission.html n Publishers copyright & self archiving policies http://www.sherpa.ac.uk/romeo/

23. Copyright Resources  Copyright Advisory Office, Columbia http://copyright.columbia.edu/copyright/  Crash Course in Copyright (UTAustin) http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm  Library of Congress, Copyright Office http://lcweb.loc.gov/copyright/  Legal Information Institute (Cornell) http://www4.law.cornell.edu/uscode/17/  Stanford University Libraries http://fairuse.stanford.edu  WIPO Study on Copyright Limitations and Exceptions for Libraries and Archives (Crews, 2008-2-26) http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192  TEACH Act Toolkit (NC State) http://www.provost.ncsu.edu/copyright/toolkit/

24. Open Access: A Primer What is it, really? Gratis, libre, green, gold: decode the jargon Intellectual Property @ VT Peter Suber, Joy Kirchner, VT Provost’s Office Charles Eckman, Patricia Hudson, Dan Morgan: http://connect.ala.org/node/128235

25. Open access is n using the Internet to make research literature publicly available “There are better ways to pay the bills than by charging readers and creating access barriers.”

26. Why remove access barriers? n Accelerate research n Enrich education n Share the learning of the rich with the poor and the poor with the rich n Make this literature as useful as it can be Lay the foundation for uniting humanity in a common intellectual conversation and quest for knowledge

27. Legal basis of Open Access Consent of the copyright holder for newer literature Expiration of copyright for older literature

28. What’s gratis and libre OA?  Gratis OA  No barriers have been removed  Does not allow more than fair use  Libre OA  Author has removed permissions barriers in advance  Both gratis and libre remove financial barriers.

29. OA authors allow Internet users  Read  Download  Copy  Distribute  Print  Search  Link  Index  Pass text as data to software  Any other lawful purpose Copyright still gives authors control over the integrity of their work and the right to be properly acknowledged and cited.

30. Roads to Open Access Retain enough rights  Authors have copyrights until they transfer them.  Journal publishers  Authors share their rights by permitting non- exclusive use of their copyrighted works. –Director of OA Journals www.doaj.org –NIH PubMed Central deposit –University/library repository: VTechWorks –VT Policy 13000

31. VT Faculty Handbook, IP Policy 13000 n Traditional results of academic scholarship, i.e. textbooks, literary works, artistic creations, artifacts n Contribute to the university’s benefit by their creation and continued use by the university in teaching, further development, enhancements of the university’s academic stature n Presumption of ownership is to the author(s)

32. VT Faculty Handbook Intellectual Property Policy 13000 n Presumption of ownership is to the author(s) n University rights limited to free/no cost use in perpetuity –Teaching –Research –Extension –Etc.

33. What does green and gold OA mean? n Gold OA = peer-review + publicly available –Subsidized by host (university, society) –Charge fees to accept articles Paid by authors, employers, grants VT Libraries/Office of Research may provide resources n Green OA = self archiving, IR –DLA, VTechWorks –Both may restrict access for a limited duration when required, but the goal is to provide public access to this information, not just access to the current university community.

34. OA charges Hudson/Oxford/ALA

35. Subsidized Faculty Benefited UC Berkeley Simon Fraser

36. Ranks of Benefiting Faculty UC Berkeley Simon Fraser

37. Charles Eckman Reported at ALA Midwinter 2012 n Faculty will publish OA when insulated from publication charges by funds from whatever source –Researchers will use extramural funds –University OA fund will be tapped n <1% of a library’s materials budget makes a big difference n Experimentation is –Practiced by the publishing community –Valued by campus community –Vital for libraries

41. Kircherner’s Economics of Quality