I had thought that my two most recent posts reflecting on the future of research libraries would end the year for this blog. But I find two issues have arisen that I want to comment on. Since they both involve copyright — one is merely my observations and the other involves reporting on a recent court decision — I consider this post a year-end copyright roundup. Yee Haw!
I have commented before about the campaign that Elsevier has undertaken to send take down notices regarding PDFs of articles they have published that are posted on Academia.edu. At that time, I expressed the hope that the American Association of University Professors would get involved. The AAUP has been very diligent in defending the copyright interests of faculty, correctly perceiving that rights ownership can be an issue of academic freedom. Unfortunately, up till now, at least, this concern of the AAUP has had a huge blind spot — the threat to academic freedom that is posed when copyright is transferred to large commercial interests like Elsevier, usually gratis and on terms dictated by the assignee rather than the author, which do not share the values regarding scholarship that are held by most faculty authors and by the AAUP itself.
Now we have begun to see that this take down campaign from Elsevier has expanded, as we hear that notices to remove posted PDFs are also being sent in large numbers to universities, presumably directed at copies of articles that are posted on the individual profile or research sites of the faculty authors. These authors clearly believe that they have the right to post these articles — probably because they correctly consider the distinction between their final submitted manuscript and the published PDF to be meaningless — and Elsevier and Elsevier’s insistence that those articles be removed is a direct attack on research sharing, the advance of scholarship and, therefore, academic freedom. Why does the AAUP remain silent? In the past they have implied that they did not want to interfere with authors’ decisions about where to publish. But now we have clear evidence that many authors do not understand the rights situation and their ability to continue their research projects when they assign copyright to Elsevier. On individual campuses we work to educate them, but we desperately need the voice, and the gravitas, of the AAUP to step in and help faculty authors understand the consequences of these publication decisions. Thoughtless assignment of copyright is a grave threat to academic freedom, as Elseivier is working hard to demonstrate, and it is an issue that the AAUP cannot ignore without seeming to condone.
As for campus responses to these take down notices, I want to make one point. These are not ordinary DMCA take down notices; the DMCA, and section 512 of the copyright act that it amended, pretty clearly imagine that take down notices will be sent from the rights holder to remove material posted by some third-party user of an Internet service. They do not contemplate a situation where the actual ownership of the rights might be disputable. But that is the case here, where the “user” who posts the PDF is the original rights holder, the author. Elsevier is sending these notices as a putative assignee. But we know from long experience that publishers are not good at actually completing copyright transfers, faced with publication deadlines and author disregard of the final paperwork. So in this unique situation, we cannot be sure that Elsevier actually does hold the rights on the basis of which they are demanding takedown, and that the authors who posted the work are therefore not entitled to do so. In this situation, simple compliance with the law demands that universities, through their DMCA agents, insist on receiving evidence of a completed copyright assignment — the law requires a written and signed instrument — before they comply with Elsevier’s take down notices.
The case I want to comment on also involves the relationship between universities and authors who hold copyright, in this case the authors of dissertations. In Andrew Diversey v. The University of New Mexico, which was before the Tenth Circuit Court of Appeals and decided on December 23, we had a direct conflict between a dissertation author and his university. Briefly, Diversey alleged that he had a terrible time with his dissertation committee, finally sent a draft of his thesis to the Dissertation Coordinator for proofreading, and had it “confiscated” by the Graduate Studies Dean. Subsequently, Diversey discovered that copies of his draft had been sent to ProQuest and to two UNM libraries. The story strikes me as bizarre, especially since there is no indication that Diversey received a degree or that his dissertation won formal approval. So it is odd that it was apparently treated as a finished product; there may be more to the story that we do not know. But ultimately, Diversey sued the University of New Mexico for copyright infringement for copying and distributing his dissertation without authorization. His claim was dismissed by the trial court because that court said it was filed after the statute of limitations had run out. But the Court of Appeals reinstated part of the claim, for unauthorized distribution, and sent the case back to the District Court.
The crux of the case is whether the University infringed Diversey’s by making copies and putting them in their libraries. The Court of Appeals finds that it is at least plausible that it did. The Court recognizes Diversey’s copyright in his dissertation, of course, and suggests that any copying or distribution without his permission, even by the University at which he was a student, is infringing. Copies were made, according to the Court, but Diversey had notice of those copies far enough in the past that the statute of limitations had run out on his claim for unauthorized reproduction by the time it was filed. But the Court found that Diversey only became aware of the distribution, by which it means placing copies of the dissertation in the libraries and listing them in a catalog, within the three-year limitations period, so his claim on that alleged infringement should go forward. The Court also found that a fair use defense would not protect UNM in this set of circumstances.
To me this case is a warning to universities and schools that want to retrospectively digitize Doctoral or Masters’ theses and dissertations, and decide to skip the step of seeking permission from the authors. It is perfectly true that libraries can distribute “lawfully made” copies under the doctrine of first sale. But if the copies themselves were unauthorized, so too is the distribution of those copies. In other words, if the only copy that UNM placed in its library was the one Diversey originally submitted, they could have a first-sale defense. But the University clearly made more copies, since they sent one to ProQuest and had at least two copies in their libraries. It is the distribution of these unauthorized copies that the Court of Appeals thinks is possibly infringing. And that situation is very similar, it seems to me, to the making of digital copies of older dissertations and placing them in an institutional repository without permission from the author. I understand that some institutions decide that it is easier to ask forgiveness in this instance instead of permission. But to me that attitude is disrespectful of the authors of these works. And now we have a case that reminds us that that approach can also be expensive.
If an author discovers her dissertation in an institutional repository and is very unhappy about it, she will have three years from the time she either knew or should have known about the unauthorized copy to bring suit. The fact that the institution might remove the copy from distribution once it learns of the objection will not protect them from such a lawsuit if the author is determined. The expense of defending that lawsuit would be very high regardless of the outcome, and even higher if the institution loses or has to settle (which is now very likely for UNM in this case). For these reasons, this case reinforces my long-held belief that systematic digitization of older dissertations or theses is a situation where permission is the better course, since forgiveness might be doubtful and, without it, the cost could be much too high.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses