Today Dan Donnelly from the University of Minnesota’s Copyright Information and Education Initiative came to talk to us about copyright in educational settings. It’s funny, but after a year of trying to wrap my mind around the four factors of fair use, I’d forgotten all about the actual language associated with fair use in the law. Here it is:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. (Title 17 USC, section 107)

This doesn’t get us off the hook for doing the four factor analysis, of course, but it sure does help with the confidence factor.

Dan reminded us that, ironically, this doesn’t apply to course packs, since those are by nature a commercial venture.

But he did emphasize that libraries play a HUGE role in the dissemination of information on a college or university campus. We’ve already licensed huge amounts of material and, unless the licenses prohibit specific uses, this means that we’ve already paid for permission to spread information to our users. So, if you’re making a course pack, DON’T include library licensed material or you’ll be paying twice for the right to use the articles. But if you’re worried about eReserves and copyright, link to as much licensed material as possible (within the license agreement, of course) because that’s already been handsomely paid for. And remember that I said “link” to licensed material. Don’t download and upload. Link.

tags: copyright, education, ereserves, course packs, fair use

As many of you know, I’ve been part of a group on campus charged with creating Carleton’s first ever campus-wide copyright policy. We’ve had a policy on copyright ownership, but never a stated policy on the use of copyrighted material.

Well, we began this process almost exactly a year ago, beginning with copious amounts of research into the law, prevalent guidelines, and the policies in place at other institutions like ours. Then we started making decisions: would we adopt a guidelines approach or a personal responsibility approach? Is there an interpretation of copyright law and fair use that not only sits well with the college but also sits well with our lawyer? Will we institute a central copyright office on campus or simply a funding mechanism to help faculty and staff pay for their own permissions? The list goes on and on.

After this, we drafted a policy, sent it to a lawyer for review, and then redrafted it according to the feedback we received. And now, finally, the Board of Trustees has signed off on it. Great. Go us. But…

Now we’re suddenly faced with implementing this new policy, which means we not only have to design and provide copyright education to faculty and staff (with special emphasis on the departmental secretaries). This would be a daunting enough task if it weren’t for the time-frame. You see, we have to have a plan in place for implementation and education… by Monday. Did I mention that our library is overhauling our reserves and e-reserves policies to more fully mesh with the new policy? Well, it is… by Monday.

So this past Monday was the first in my series of at least one copyright related meeting per day this week. On Monday I met with our College Librarian, the head of Loan Services, the head of Reserves, and the Media Librarian to begin this process. Tuesday I met again with the head of Loan Services and the head of Reserves to come up with a list of key policy-points, draft some release forms, brainstorm about possible procedures, and generally have a grand old time in policy land. Later Tuesday I met with the campus-wide copyright group to come up with campus-wide implementation plans and report on the library’s progress with our reserves policy and procedures. Today the original group from the library met again to refine our plan and put it into a form that could be taken to the Dean’s Office. Later this afternoon the head of Reserves took the plan to the Dean’s Office (and met with general approval! Yay!). Tomorrow I meet with the rest of the liaison librarians to see exactly what our role will be in all of this. And Friday I meet with the head of Loan Services and the Associate Dean of the College to finalize the planning for the library’s chunk of this whole process. Then, on Monday, the associate Dean will present all of this at the faculty meeting.

Last week, I had no idea that ALL my time this week would be eaten up by this project.

May I suggest to all of you policy makers out there that if you decide to implement a college-wide policy, you allow more than a week for the planning of that implementation. You never know what unsuspecting librarian might find herself unable to do any of her normal work and who might have to stay up very late knitting herself back into a balanced state of mind. You might find that such a librarian (young, inexperienced, lacking in authority on campus, a policy-writing virgin, and increasingly sleep deprived) might just run out of both imagination and the ability to predict the possible consequences of policy decisions. I’m just sayin…

tags: copyright, libraries, reserves, ereserves, policy

As well as the committee charged with choosing a course management system for our campus (no new news to report just yet… still banging head against wall), I’m also on a committee that’s drafting a copyright policy and educational material about copyright for our campus. And now we’re stuck (again) because we’ve got a nice little policy that’s going before the admin council tomorrow morning, and we’ve got a nice little collection of educational material and decision aids, but now it turns out that the faculty really don’t want to know how to comply with the law. They want us to set up an office on campus that’ll do it for them. And I can TOTALLY sympathize. I wouldn’t want to wade through this on a regular basis, either, if someone else would do it for me. There are only two problems with this plan: it would reduce the purview of fair use, and it would be impossible to set up.

It would reduce fair use because an office of this type simply could not weigh the four factors effectively. This means that, when in doubt (which would be most of the time), they would have to err on the side of not getting sued, so they would become very quick to seek and pay for permission. As soon as you pay for a use that could have been fair, you’ve effectively increased the market for that work, and future uses would therefore be less fair. Fair use absolutely atrophies if no one exercises it. In the long run, this would increase the cost of copying, because more uses would require payment for permission. So if you need a bottom-line reason as well as a philosophical one there it is.

Even if we decided that this didn’t matter to us, there’s the whole impossibility of setting up such an outfit. We won’t get more staff to run this thing, and I imagine that even if we were funded and permitted to hire a whole office, we’d have a hard time recruiting copyright whipping-boys-and-girls.

So what can we do? We absolutely have to make compliance as easy as possible or no one will pay attention. But fair use, by far the most crucial and precious part of the whole operation, can only be deployed effectively by well-informed individuals who are weighing uses on a case-by-case basis.

Not only that, but our recent talks with faculty have revealed universal surprise that the library wasn’t checking up on the copyright status of everything being brought in and put on reserve even though it’s stated very clearly on everything we send out every term that it is up to the professor to check this and deliver copyright-cleared copies to us. Clearly, the message just isn’t clear enough or getting to our users at their point of need. Maybe a standard required waiver asking them to check either the box that says this is fair use or the box that says they’ve received permission, followed by a signature? It’s something to consider.

And may I just point out that citing and proper attribution have NOTHING to do with copyright. Aside from who, exactly, is supposed to insure that we’re all following copyright law, this seems to be the single greatest source of confusion on campus. I can’t tell you how often I’ve heard earnest and well-meaning professors, students, and staff tell me how much our educational materials are needed because so many people out there put together PowerPoint presentations or class papers that include images without attribution… You can cite every word, image, or sound and still be in violation of copyright law. You just won’t also be guilty of plagiarism.

While I’m on the subject, guidelines such as the Classroom Guidelines seem wonderful and helpful, but they aren’t failsafes, and they aren’t the law. Believe it or not, there’s no clause in the copyright law that mentions 10% of a book or the idea that you get one free use but have to pay after that. You can still get sued if you use less than 10%, and frequently you’d be just fine using more than 10%. Weighing the four factors is the only way to know for sure. (Luckily the University of Minnesota has created a tool that can help walk you through the four factors. We use it all the time at our college. Thanks UMN!)

Well, that’s enough screaming and pulling-of-hair for one night.

Just as I’m lamenting the current state of Copyright Law, I hear from News.com that Congress, in it’s infinite wisdom, is drafting a revision to current law that would make things much, much worse. If the new draft becomes law, it will become a crime to intend to violate copyright protections. That just smells of Big Brother…

Here’s what the news article says about other changes in the law:

The proposed law scheduled to be introduced by Rep. Smith also does the following:

• Permits wiretaps in investigations of copyright crimes, trade secret theft and economic espionage. It would establish a new copyright unit inside the FBI and budgets $20 million on topics including creating “advanced tools of forensic science to investigate” copyright crimes.
• Amends existing law to permit criminal enforcement of copyright violations even if the work was not registered with the U.S. Copyright Office.
• • Boosts criminal penalties for copyright infringement originally created by the No Electronic Theft Act of 1997 from five years to 10 years (and 10 years to 20 years for subsequent offenses). The NET Act targets noncommercial piracy including posting copyrighted photos, videos or news articles on a Web site if the value exceeds $1,000.
• • Creates civil asset forfeiture penalties for anything used in copyright piracy. Computers or other equipment seized must be “destroyed” or otherwise disposed of, for instance at a government auction. Criminal asset forfeiture will be done following the rules established by federal drug laws.
• Says copyright holders can impound “records documenting the manufacture, sale or receipt of items involved in” infringements.

Just when I think it can’t get worse…