Monthly Archives: January 2007

Copyright in the Classroom

Copyright Resources on the Web

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The Association of Research Libraries provides an excellent brocure called “Know Your Copyrights” that summarizes what classroom instructors can do with copyrighted material:

These two sites offer good general overviews of copyright as it affects higher education and in-depth explanations of fair use:

 

This site addresses a number of additional scenarios involving fair use in course management sysytems:

These two checklist can help determine if a specific use falls into either fair use or the TEACH Act:

 

This text is designed to help graduate students understand the impact of copyright law on their research and publishing:

 

This chart will explain the complex determination of whether or not a particular work is in the public domain:

 

When it is determined that permission for a particular use is needed, the Copyright Clearance Center should be the first stop:

Open Access and Institutional Repositories

Open Access legislation stalled

Three important pieces of legislation for the Open Access movement stalled in Congress last term. None were adopted, and it seems likely that some of these proposals will be reintroduced in the new Congress, although the form may change.

Both the Federal Research Public Access Act, which would have required public access within six months for all published research that was supported by federal funding from the major funding agencies, and the less well publicized CURES Act, which would have mandated public access for funded medical research (much narrower that FRPAA), died when the last Congress adjourned and will have to be reintroduced in the 110th Congress in order to be considered.

The best chance for any public access mandate last term had seemed to be the NIH Reauthorization bill, which contained language to make deposit of NIH-funded research, now merely suggested, mandatory. That language was removed, however, before the Reauthorization bill was approved.

So the status quo on public access reigns.

Open Access and Institutional Repositories, Scholarly Publishing

What copyright licensing issues are involved in digital publishing?

Digital publishing really involves three separable issues.

First is the author’s rights that are negotiated when a work is published in traditional media. This is where an author’s addenda comes in; they help preserve the right to make educational uses and to publish in online forums. These addenda are actually increasingly unnecessary, however, as publication agreements are thenmselves being modify to allow those rights in the first place. It is important for authors to negotiate with publishers to retain rights for digital publishing.

The second concern is the license that an online publisher obtains from the author for online distribution. If the work has been published in a traditional journal, the author has to be sure s/he has the right to allow online distribution, then they usually give a non-exclusive license to distribute to the online publisher.

The third concern is the license that the online publisher uses to try and control uses made of the work by the public who receives it. This is what the Creative Commons license is designed to do. The Creative Commons license relies on an assertion of copyright, so the person doing the licensing must hold the copyright for it to work. The CC license is a waiver of copyright, a statement that the copyright will not be enforced against certain uses (ie, attributed non-commercial uses) that will therefore not require any further permission.

For most online publications it is necessary to think about all three rights issues. The first will only arise if the online repository is publishing something that has already been published elsewhere. If the work is previously unpublished, this will not be a concern. The other two types of licensing issues will have to be decided, however.

Generally a digital publisher will want to get a non-exclusive license to publish the work from the author. This license should, in turn, confirm that the material will be distributed to the public under a Creative Commons license. By including in the license with the author a stipulation of how the material will be sdistributed, many later misunderstandings can be avoided. Indeed, prior awareness of each of these three rights issues in licensing digital content, and of how they inter-relate, will smooth over most of the potential legal rough spots as digital publication moves forward.

For a sample distribution license that anticipates distribution under the Creative Commons, see our Scholarly Communications Toolkit.

Copyright Issues and Legislation

Copyright legislation left behind by the 109

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The 109th Congress adjourned last month without taking action on a number of copyright related bills.

Most significant amongst the un-adopted proposals was the “Orphan Works” act, which was first proposed as a stand-alone bill, then later incorporated with another, much less appealing, copyright amendment. Orphan works legislation is tremendously important for libraries, and is relatively uncontroversial, at least compared to many other copyright proposals. The legislations incorporates a proposal made by the Library of Congress that would amend the “remedies” chapter of the Copyright Act (Chapter 5 of Title 17 in the US Code) so that it would be easier to make use of works that are still in copyright protection but for which a rights holder able to grant permission for the use is unavailable. The potential user would be required to make a “reasonably diligent” search for the owner of the copyright before proceeding. After such a search, if a rights holder turned up later on, the only financial liability the user would have would be to pay a reasonable licensing fee for the use to that rights holder. A non-profit educational institution could avoid even this fee by ceasing to use the material.

Orphan works reform would greatly reduce the “chilling effect” that extended copyright protection has on libraries that want to prepare digital collections and displays. Often the material in question is quite old and no longer subject to any commercial marketing, but libraries are currently subject to significant damages if they use such material and are later confronted by a re-appearing copyright holder .

Two other pieces of legislation that were left unresolved were the “Broadcast Flag” proposal and the “Digital Media Consumers’ Rights Act of 2005.” The former would give the FCC authority to require that all digital TV signals contain code that prevents redistribution. Because its language about educational exceptions is unclear, this proposal seems to threaten legitimate educational exploitation of TV signals. The Consumer Rights Act, on the other hand, would create an amendment to the DMCA to allow consumers to bypass technological copy protection controls as long as that “circumvention” did not result in copyright infringement. This proposal would greatly simplify educational use of digital content.