Reserve and Copyright
Basics for Educational Use of Copyrighted Materials
Copyright as a legal concept in the United States has its roots in the United States Constitution in Article 1 Section 8, Clause 8: " 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."
Title 17 of the United States Code provides the laws that further define copyright.
Title 17 grants the owners of copyright exclusive rights to reproduce, perform, distribute and license their works for a limited time. Current law requires no official copyright registration, defining as copyrighted from 1989 on "any original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."
Links to overviews of copyright for academic uses
Cornell University
Stanford University
North Carolina State University
Fair Use and other exceptions to the Copyright Laws
Some documents are not copyrighted at all. A work may have passed into the public domain (see chart for dates).
Or it may be a government document, a collection of facts or freeware. These may all be used without copyright permission.
The majority of acceptable free use of copyrighted materials for educational purposes exists in limitations to the law, found in Title 17, Chapter 1, Sections 107 and 108. Generally, the most useful limitation of copyright for disseminating materials for pedagogical use falls under the Fair Use Doctrine.
It is important to note that the Fair Use Doctrine provides no hard-and-fast rules to gauge fair use. Case law has done little to clarify fair use. And the Internet has added chaotic elements to an already ambiguous set of standards.
All four factors in the Fair Use Doctrine must be taken into consideration on a case-by-case basis to decide if a work falls within fair use.
Section 107 sets out four factors that must be used to ascertain fair use.
1. The purpose or character of the use
2. The nature of the copyrighted work being used
3. The amount and substantiality of the work being used
4. The effect of the use on the market for or value of the original
Several university web sites present fair use checklists that may help you apply the fair use doctrine to individual cases:
University of Texas Fair Use Rules of Thumb
Indiana University Checklist for Fair Use
North Carolina State University Fair Use Considerations Worksheet
Licensing
In the electronic information age the issue of licensing has serious implications for the concept of fair use. The model of licensing electronic information has become the industry standard. In the past libraries purchased and therefore owned information resources. The majority of electronic information available through libraries now is leased. In this environment license agreements take on profound implications as contracts are legally binding, regardless of where they fall in our interpretations of fair use. The academic community needs to carefully consider licenses to electronic information, making sure to secure the rights we feel we should have under the copyright law.
Examples of how we apply the Fair Use Doctrine in the Main Library Reserve Department
1. Professor X would like to post an electronic version of the journal article "The Authority of Anger: Three Guineas as Case Study," by Brenda Silver, published in Signs: Journal of Women in Culture and Society, vol. 16, no. 21, 1991, pp. 340-370.
The purpose of the use is educational and not for profit, which weighs heavily in favor of fair use.
The nature of the work is factual, which weighs heavily in favor of fair use.
The amount of work is one article out of an entire journal issue (journals generally hold copyright to their articles), therefore not substantial, which weighs in favor of fair use.
The effect on the market value is a tricky question, but most experts agree that if the first 3 factors tend towards fair use, then you may apply the Fair Use Doctrine.
2. Professor X would like to post the above article every year for use in the same course. This presents an interesting case because in most guidelines repeated use of an item argues against fair use, even though this does not appear in the Copyright laws. Repeated use does present a stronger argument that there will be an effect on the market for an item, and the courts weigh the economic effect argument more heavily than other aspects of fair use. Therefore in Reserve we request copyright permission to post the article more than one time for a particular professor repeatedly teaching the same course.
3. Professor Z would like to place the contents of a coursepack on Reserve. In the case Basic Books, Inc. v. Kinko's Graphics Corporation a United States district court ruled that copyright holders must be recompensed for materials included in coursepacks. Therefore we will not place a coursepack on Reserve, either in hardcopy or electronically, as it fails the economic effect argument.
4. Professor Y would like to place on reserve photocopies of 3 chapters, totaling over 25% of the work, from an in-print novel she wrote 2 years ago.
The purpose of the use is educational and not for profit, which weighs heavily in favor of fair use.
The nature of the work is creative, which weighs heavily against fair use.
The amount of the work is substantial, which weighs against fair use.
At this point 2 of the 4 factors weigh against fair use. In most cases book publishers hold the copyright, not authors, and the book publisher would have to grant permission to place the chapters on reserve. If Professor Y holds the copyright, however, she may grant permission to use any portion of the work.
Copyright Guidelines
A number of organizations have created guidelines to address questions raised by the copyright laws. Each guideline represents a viewpoint that accords to some degree with the purposes of the individual organization. None of the guidelines have been tested by a court case, and none of them have the force of law. Why then would individuals and organizations utilize them?
The penalties for willful copyright infringement are quite high. Infringement from ignorance of the law also carries financial penalties, and in both cases legal fees may also be expensive. However, within Title 17 exists a clause that excuses those who "had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107."
Following an organizational guideline on copyright procedures would serve as proof that you acted in good faith when applying the fair use doctrine.
Individual Guidelines
Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Room Use (find in alphabetical order on the web site)
American Library Association
The American Library Association issued this policy in response to the Copyright Law that took effect in 1978. Much of the basic material is out-of-date. However, many organizations have adapted the guidelines to include electronic delivery of materials. A lawyer constructed the guidelines, and states that they tend towards a conservative interpretation of fair use.
Fair Use in the Electronic Age (Working Document)
Association of Research Libraries, in conjunction with several other library associations
While not strictly guidelines, this working document updates the philosophy of the American Library Association guidelines. It promotes a liberal interpretation of fair use, but has less force to it than official guidelines would.
Final Report to the Commissioner on the Conclusion of the Conference on Fair Use (CONFU)
Under the Clinton administration the U.S. Patent and Trademark Office facilitated the Conference on Fair Use (CONFU). CONFU involved over 100 organizations representing both holders and users of copyrighted materials. It ran over two years, and in the end failed produce an official set of guidelines. However, drafts of guidelines were produced and provide a starting point to create other guidelines. Basically the publishing industries found the guidelines too liberal and the educational community found them too conservative. For an analysis of the draft guidelines see the Association for Research Libraries commentary.
Basic Principals for Managing Intellectual Property in the Digital Environment
NINCH (National Initiative for a Networked Cultural Heritage) and National Humanities Alliance
Created by a group of organizations that promote educational uses of information, these principals contain a somewhat liberal bias towards interpreting and creating copyright laws. They could be used as a basis to form guidelines.
Guidelines on photocopying under Interlibrary Loan Arrangements
CONTU (National Commission on New Technological Uses of Copyrighted Works)
Created in 1978 with by the Commission to aid congress in writing a new copyright act. These guidelines only apply to
interlibrary loan and were agreed upon by library, publisher and author organizations. Out-of-date for electronic materials,
at least the guidelines stand as something once agreed upon by the publishing and educational communities.
Consortium of College and University Media Centers (CCUMC)
Music Library Association's Fair Use Guidelines for Multimedia Materials
MLA Statement on Digital Transmission of Electronic Reserves
Image Collection Guidelines: The Acquisition and Use of Images in Non-Profit Educational Visual Resources Collections
Visual Resources Association
The VRA guidelines stress adherence to licenses and other contractual agreements made by organization that disseminate images as part of their educational charter. These guidelines are liberal in their assertion that, as long as the use is educational and non-profit, digital materials should be available to the same user group that the analog collection serves, for the same purposes.
