Copyright Crash Course: Copyright 101

More often than not, the university does not own copyright in the works its faculty and students need to read. In the print world, this means the library must buy books and subscribe to e-books and journals. It also means that universities may need to acquire additional rights as well.

To fully utilize print works, universities may need to:

• Obtain permission to make photocopies and digitize, display, perform and distribute
  • Reserves
  • Coursepacks
  • Research, scholarship and private study
  • Interlibrary loan and document delivery
  • Administrative copies

Regarding our licensed electronic works, universities may have to:

• Obtain rights to make uses that are not covered by the access license; or
• Negotiate better access licenses that cover all anticipated educational uses

But when is permission required and when does fair use apply? Unfortunately, this question does not have a simple answer. Learning to analyze a use to determine whether it's a fair use does require some effort. There are workable guidelines, but they tend to be more restrictive than sometimes necessary. Nevertheless, they may be preferable to no help at all.

Ultimately, universities must focus upon licensing for the many (perhaps hundreds of thousands of) uses that go beyond fair use. We must learn more about transaction based and subscription licenses, assess their strengths and weaknesses, and know when to exploit each type to most efficiently promote copyright compliance.

We also must provide support for staff who must negotiate license agreements for access to electronic works. If we acquire sufficient access upfront, we may not need additional permissions for the uses that we know we'll need to make of electronic works.

Compliance strategies

Our first strategy for complying with copyright law must be educating our faculty, staff and students to be better consumers of copyrighted materials, more responsible in their use of others' works, and careful in their exercise of statutory exemptions.

But we also must make it easier for faculty, staff and students to get permission to make uses of others' works when statutory exemptions do not apply. We must establish quick, easy and reliable links with copyright clearance centers, negotiate subscription licenses where they would be advantageous and acquire access in digital materials that is sufficient to obviate the need for additional permissions to use such licensed electronic information.

So, our compliance strategies should include:

• Education 
  • What is fair use?
  • What activities require permission? 
• Transactional licensing 
• Subscription licensing

Policy and Procedure Issues

Although there is disagreement about the extent to which one may rely on fair use to justify providing course materials without permission, suffice it to say that the idea that all uses are fair is unsupportable. Thus, if some uses require permission, there exists the need for a copyright-compliant system as a starting point for the rest of the discussion. 

An ideal system would allow faculty members to identify required and recommended readings and post them themselves or delegate posting; those readings would be “cleared” if necessary (permission to duplicate and distribute would be obtained when needed, but not otherwise); students would access the materials through their course management systems or as directed by their professors; and the whole process would be repeated each semester.

Many aspects of the university environment and the evolving publishing industry make achieving the goal of a compliant system difficult, if not impossible. Following is an outline describing five broad problems that significantly impede implementation.

• Lack of awareness that a problem exists among campus administrators who can not be expected to allocate resources to solve a problem they do not know about.
• The decentralized nature of curricular decision-making.
  • Faculty are reluctant to undertake the evaluative tasks involved in assessing whether a work is licensed already, is available for license through the Copyright Clearance Center (CCC), whether its use may be fair, or whether permission is required. 
  • Educating those who use licensed materials about the best ways (e.g. linking to materials in a database) to make those materials available is a monumental task.
• Centralizing these tasks at any level or at multiple levels may require hiring temporary staff at the beginning of each semester to quickly and efficiently assess course materials requests.
  • ​We need technological resources to create a bridge between those who acquire permission and the library databases of licensed materials.
  • We must hire adequate numbers of staff to carry out these tasks.
  • We must allocate adequate financial resources to pay permission fees or charge the fees to students.
  • These same processes are needed for many other campus projects involving digitization and distribution so systems devised to address digital distribution in this context (course materials) need to be available for other uses as well, such as digital repositories.
• There are some inherent inefficiencies in the fair use analysis which must be addressed if a scalable system is to be developed. 
• Evolving business models in the publishing community may render complicated clearance processes obsolete in the near future.

Today only a fraction of the materials used each semester passes through any kind of gatekeeper, such as a library reserve system or course pack operation, because all faculty members have the capacity to post their own readings within their course management systems. The magnitude of the problem should be clear. Addressing the problem of copyright compliance involves changing an entire culture, not just a few individuals’ activities. 

Thus, establishing campus copyright offices centrally, or at college or departmental levels could be especially helpful because of the nature of the tasks required to implement a compliant system. Copyright compliance is part of many projects underway at our campuses. For example, institutions are filling digital repositories with materials whose duplication and distribution may require permission, so the same processes we identify and recommendations we might make for online course materials will have some application to other projects on campus.

Most importantly, we must recognize that copyright compliance is not a library problem. It is a university problem. And it needs a university solution.