I’ve been working on a document that lays out the rationale for our electronic reserves policies as they relate to copyright. And as I did so, I realized that it’s hard to write such documents without using the phrase “we believe.” I found myself systematically going back through my drafts and notes looking for ways to rephrase things so that it reads less like a statement of belief and more like informed decisions. Systematically removing words and phrases from drafts can be tedious, but this time it was fascinating because it foregrounded just how much the act of interpreting copyright law relies on good faith efforts to make sense of antiquated, misunderstood, emotionally charged, vague, and tangled laws.

This is even more the case when making sense of the law as it applies to electronic reserves. Reserve services are governed by Section 107 (the “Fair Use” section).* Unfortunately, one of the best ways to know if any particular interpretation of Fair Use is correct is to see how court cases have handled that issue, and no court cases have yet dealt with electronic reserves.** This means that libraries everywhere have to make one fundamental decision without guidance from the courts: are electronic reserves more like coursepacks or more like print reserves? The former assumes an element of commerce in the creating and selling of the coursepack that isn’t present in electronic reserves, but offers the slim comfort that the creation of coursepacks has been tested in the courts.*** The latter builds on the idea of extending easy access to a subset of the library’s collections to a particular population of students, but it leaves libraries with no legal precedent to lean on.

And having decided between these two options, libraries then have to make a whole host of related decisions about how far Fair Use extends, what mechanisms should be in place to guard against copyright infringement, and how to make sure that all of this stays out of the way of the students’ learning experience as much as possible. All of this with only legal analogy, not legal precedent, as a guide.

Is it any wonder, then, that documents explaining the rationale behind our policies are more statements of belief than they are statements of fact?

This I believe: electronic reserves are not coursepacks. Yet they are copies of original articles and must therefore undergo the Four Factor test for each and every article, each and every time they are used. I also know that Fair Use was invented with education in mind, and therefore I believe we should weigh those Four Factors with confidence in the knowledge that they were laid out for us, that they are speaking to us, and that they are not grasses laid over legal snares that are lurking, waiting to torture us and demand our first-born children in payment for unforeseen infringement.

* Unfortunately, neither Section 108 (provisions for library copying) nor Section 109 (the “Doctrine of First Sale”) apply to electronic reserves. If they did, things would probably be a lot clearer cut.

** A case against Georgia State University is still in the works.

*** See the first two cases listed here.

Peter Hirtle has updated his Copyright Term and the Public Domain in the United States chart, the chart for anyone who needs to begin evaluating the copyright status of a work produced in the United States. This version has a new URL, so update any links you had before. The chart also includes new sections on sound recordings and architectural works.

For the two or three of you that haven’t heard, the Copyright Clearance Center (CCC) has decided to license permissions to copyrighted material (note that on the left-hand side of that screen you can read an overview of the license itself in PDF). They say that this will be convenient (well yeah, you’ve already paid) and that you’ll gain “confidence” and “peace of mind.”

As much as I hate to say it, I think they’ll gain a lot of customers on those last two points alone. Nothing makes people squirm as much as copyright permissions. Everyone always doubts their fair use analysis and forgets that “multiple copies for classroom use” is written right into the fair use clause of the law.

But why might you not want to sign up for that license? James Boyle of the Financial Times has a great piece on that, as does Peter Hirtle of the LibraryLaw blog (his analysis is here). In short, here are the key issues as I see them (both of which figure large in Hirtle’s post):

• Paying for permission when you don’t have to erodes fair use arguments in the future by increasing the market value of the work.
• Permissions come in many shapes and sizes. What is the use of licensing permissions from the CCC when we already pay licensing fees from databases, for example?

I would hate to see my library go this route, especially since I imaging that the CCC fee structures are based on a fairly -er- “optimistic” interpretation of fair use. And yet I feel sympathy for libraries that either don’t have the staff to go through the permissions process, or don’t have the training to determine fair use on their own.

At the same time, just writing that last sentence makes me feel like I’ve just said, “It’s just too bad some kids don’t have the wherewithal to learn to read…” I recognize that licensing will be an attractive option, but I think it’ll cripple us.

I’ve been learning more and more about copyright ever since I landed in the group on campus that wrote our copyright policy. But I’ve almost exclusively learned about copyright from the content user’s perspective rather than the content creator’s perspective. Well, lately I’ve begun to learn about that other side of copyright law.

A few months ago I was asked to write a chapter for an upcoming ACRL publication. Right away I asked, “Can I have a co-author, and can we put our finished product into our institutional repository?” The answers came back in the affirmative, which was very encouraging all around.

Then we got our copyright agreements in the mail and the cover letter said, “This form grants you the copyright to your work, allows you to use your work elsewhere after the original publication, and allows deposit in your institutional repository.” Woohoo! But….

The agreement itself said, “…. the Author hereby grants and assigns to the Publisher … all copyrights therein or relating thereto…” Hmmmm…

Further down, the agreement says that “Publisher hereby grants to Author a royalty-free license to publish the Work in any book of which the Author is the author or editor, provided the Work is identified as having first been published in the original publication cited above. The Publisher also grants to the Author the right to file the work in their institutional repository.” So that’s very, very nice, but it’s not the same as keeping our copyrights.

So, after talking it over with some people in the LSW chat room, I asked the publisher if I’d gotten the right agreement. It’s been known to happen that there is more than one possible agreement and that the author receives the wrong one.

But it turns out I got the right one. ACRL’s response was very encouraging, though. They said they’ve never been asked about this before and wondered what would be better. So I suggested removing that bit about “you get to keep your copyrights” from the cover letter, and then adding a clause saying that copyrights revert to authors X number of months or years after the book officially goes out of print. Sound reasonable? I hope they think so.

Meanwhile, I’ve suggested to our copyright group on campus that we should add a “what to think about before you sign away your rights” facet to our copyright training.

[Update: It looks like ACRL thinks this is reasonable! They are even thinking of asking their lawyers to draw up something even more permissive.]

[Update 2: They're thinking of making the agreement explicit that they own the copyright, but we get to use the work in any old way we want as long as we cite it as having been published first in this ACRL volume. Sounds wonderful to me!]