Fair Use Act introduced to rein in the DMCA

Yesterday an important piece of legislation was introduced into the House of Representatives by Congressman Rick Boucher (D-VA) and two co-sponsors (one Democrat and one Republican, for those who keep score).

The Freedom and Innovation Revitalizing US Entrepreneurship Act, in spite of its awkward title intended to create the acronym FAIR USE Act, is an attempt to mitigate the negative impact of DMCA anti-circumvention rules on education, among other activities. Note that it is not a full-scale incorporation of fair use as a DMCA exception, which would create furious opposition, but a more limited attempt to improve the situation for education and for libraries.

Last fall, the Library of Congress approved an educational exception to anti-circumvention for the first time — a narrow rule permitting film and media professors to circumvent security measures in order to make compilations of film clips for classroom use. The new exception lasts for three years, after which it would either “sunset” or have to be renewed. The legislation proposed by Rep. Boucher would make all of the current six exception to the DMCA permanent.

More importantly, this bill would expand the scope of exceptions to the DMCA in ways that would really improve the climate for educational use of technology. The film clip exemption would be expanded to embrace all classroom compilations, not just those in film and media studies classes. Circumvention would also be allowed in order to gain access to public domain works, thus preventing commercial interests from “locking up” content that ought to be available for all to use. Finally, it would allow libraries to circumvent technological protections for purposes of preservation, helping to ensure that digital content will not be lost as technology changes.

This bill has been referred to the House Judiciary Committee, and its full text is not yet available on THOMAS, the Library of Congress database for tracking legislation. So stay tuned for further information and updates. But even at this early stage it is safe to say that passage of this bill would be an important step for instructional technology and library preservation of digital works, and it deserves our strong support.

Know Your Copyrights

The Association of Research Libraries offers a concise and clear brochure, Know Your Copyrights, that stresses multiple opportunities to use copyrighted materials in the classroom. It is intended to emphasize the positive things that classroom instructors are allowed to do with copyrighted material, employing the various teaching exceptions built into copyright law. It is an ideal resource for classroom instructors who want to quickly comprehend what they can do, instead of focusing on what is not allowed. The link on the title above offers several ways to download this helpful brochure.

A model publication agreement

As the options for scholarly publication, and for reusing material in multiple different formats, expand, it is increasingly important that scholarly authors retain the right to reuse their own work in the classroom, in later publications and in open access repositories and webpages. While many people assume they have always retained these rights, until recently most publication agreements did not allow these uses, even by the original authors.

Fortunately, more and more publishers, especially academic presses, are beginning to rework their publication agreements to allow for these new oppotunities in the digital environment.

Duke University Press uses a publication agreement that can serve as a model for faculty authors; it is simple, readable, and permits authors to retain an “unretricted right” to make non-commercial uses of there own work. See a copy of this agreement here:

Duke Univesity Press journal publication agreement.

It is also worth noting that Duke University Press will accept an exclusive right of first publication in situations where an author does not want to assign his or her copyright to the publisher. These arrangements are an excellent example of what authors should seek when publishing scholarly work.

The most important message for scholarly authors is to read your publication agreement carefully. For more information, click on the page listed above “For Faculty Authors” or contact the Scholarly Communications Office.

Recent Reads

Two recent books provide brief and interesting insights into two different aspects of scholarly communication.

Richard Posner, the amazingly prolific federal judge, has recently published “The Little Book of Plagiarism.” As both an academic and a judge, Posner is well placed to comment on the rash of high-profile accusations of plagiarism. His book is a thoughtful attempt to sort out why plagiarism is such an issue and to distinguish those situations in which it is worthy of sanction from those in which it is forgiveable and even desirable. Among other useful discussions is his distinction between plagiarism per se and “creative imitation,” which is something upon which culture depends, and Posner’s use of “detrimental reliance,” a concept from contract law, as a way to highlight why certain instances of plagiarism are especially blameworthy. Apart from its overly sanguine assessment of the TurnItIn software product as heralding the end of plagiarism, this is an interesing and helpful meditation on a vexing contemporary issue.

“Art History and Its Publications in the Electronic Age” is a report issued in September of 2006 that takes an in-depth look at the special problems and potential of scholarly publication in art history, where the need to reproduce high quality images adds layers of copyright uncertainty, permissions expenses and production complexity to the already strained system of academic publishing. Its discussion of copyright issues is a balanced look at the needs of artists as well as those of scholarly authors, and its examination of the publication process should be enlightening to many readers. The concrete recommendations about how libraries and university presses might collaborate to improve the climate for art historical scholarship deserve widespread attention and consideration.

The art history report, incidentally, is available on the Internet under a Creative Commons license at http://cnx.org/content/col10376/1.1, or from Rice University Press’s digital print on demand service. I think this is the first POD book I have ever purchased, and I am very impressed by the speed and quality of Rice’s service.

Copyright Resources on the Web

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 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.

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 legislation left behind by the 109

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.

Copyright and plagiarism

What should I know about how copyright and plagiarism relate?

Q – How is copyright related to plagiarism?

Plagiarism is best defined as the unacknowledged use of another person’s work. It is an ethical issue involving a claim of credit for work that the claimant did not create. One can plagiarize someone else’s work regardless of the copyright status of that work. For example, it is nonetheless plagiarism to copy from a book or article that is too old to still be under copyright. It is also plagiarism to use data taken from an unacknowledged source, even though factual material like data may not be protected by copyright. Plagiarism, however, is easily cured – proper citation to the original source of the material.

Copyright infringement, on the other hand, is the unauthorized use of another’s work. This is a legal issue that depends on whether or not the work is protected by copyright in the first place, as well as on specifics like how much is used and the purpose of the use. If one copies too much of a protected work, or copies for an unauthorized purpose, simply acknowledging the original source will not solve the problem. Only by seeking prior permission from the copyright holder does one avoid the risk of an infringement charge.

Q – What if I just take an idea from another source but do not copy the words?

Copyright does not protect ideas, only the specific expression of an idea. For example, a court decided that Dan Brown did not infringe the copyright of an earlier book when he wrote The Da Vinci Code because all he borrowed from the earlier work were the basic ideas, not the specifics of plot or dialogue. Since copyright is intended to encourage creative production, using someone else’s ideas to craft a new and original work upholds the purpose of copyright, it does not violate it. Only if one copies another’s expression without permission is copyright potentially infringed.

To avoid plagiarism, on the other hand, one must acknowledge the source even of ideas that are borrowed from someone else, regardless of whether the expression of those ideas is borrowed with them. Thus a paraphrase requires citation, even though it seldom raises any copyright problem.

Q – Where can I learn more about plagiarism?

The Duke Libraries have an extensive guide to avoiding plagiarism. For a broader discussion of issues involving academic standards and the consequences of their violation, see the web site of Duke’s Academic Integrity Council.

Managing copyright in your own work

How do I manage the copyright in my own work?

Q – What do I have to do to get a copyright?

You do not need to do anything to have copyright protection in your original work; since 1989, copyright has been automatic, taking affect as soon as original work is fixed in tangible form. This means that text that is written in a word processing program, photographs that are taken with a digital camera and music that is recorded on an iPod, to take just a few examples, all have immediate and automatic copyright protection.

Q – Should I register my copyright?

It is not necessary to register a work in order to have copyright in that work. Registration, however, has several advantages. Registration is required before a copyright holder can sue someone else for infringement, for example, and the fact of registration is considered evidence of ownership and originality. If you plan to distribute your work to the public in any way and want to protect it from unauthorized uses, registration is a good idea.

Copyright registration is easy and inexpensive ($45). The Copyright Office webpage has all the instructions and forms that you need.

Q – Do I have to give my copyright to a publisher?

Not always. Academic publishers have traditionally required that authors transfer (or “assign”) their copyright to the publishers. But it is becoming more common for a publisher to accept a “non-exclusive license” to publisher your work. In that case, you would retain the copyright and be able to make subsequent uses of your own work without permission.

Even when you do transfer your copyright to a publisher, it is possible to retain rights to make certain uses of your work. It is important to read publication agreements carefully and to be ready to negotiate with publishers when necessary.

Q – If my publication agreement gives the copyright to the publisher, can I still use my own work?

Not necessarily. If you have transfer all of your rights to the publishers, putting your own work on a website or distributing copies at a scholarly conference, for example, might actually infringe the copyright, which is now owned by the publisher. This is why it is important to be careful about the publication agreement that you sign. Remember that these agreements are negotiable.

Q – What rights should I retain when I publish a work?

One thing many faculty want to do is to use their own work in class, even after it has been published. The right to reproduce and distribute your work for non-commercial educational purposes should be retained. Likewise the right to prepare or authorize derivative works like a new article based on previous scholarship, a collection of prior writings or a translation is valuable for scholars. Also, the right to post your article on a personal web site or to place it in a repository maintained by your institution or disciplinary organization is becoming increasingly important. Studies indicate that open access actually increases the visibility and citation of your work, so retaining the right to provide such access can be very beneficial.

Q – Can someone help me understand the publication agreement?

The Scholarly Communications Office at Duke will be happy to look at your publication agreement with you. Many such agreements already permit you to retain some or all of the rights we have discussed, and if yours does not, we can suggest ways to negotiate for those rights. Please call us at 668-5541 or use the e-mail link provided.

You can also find more information on these issues, including some helpful links, at this page for faculty authors.

Discussions about the changing world of scholarly communications and copyright