ACRL News Issue (B) of College & Research Libraries 724 / C&RL News ■ July/Aug ust 2001 C o l l e g e & R e s e a r c h L i b r a r i e s news Meeting the copyright challenge Things you can do to protect your institution by Kathleen L. Amen, Judy Garrison, and Trish Keogh I magine your library in the path of an on­coming storm . . . and you have no di­ saster preparedness plans in place. Many aca­ demic libraries may soon find themselves in similar straits. Although this cataclysm w o n ’t appear on satellite photos, it’s already mak­ ing headlines with alarming frequency. What’s it all about? Copyright. Those amusing student requests for CD burners o n the library LAN should be telling us something. Implications of copyright-re­ lated activities extend beyond the library to the entire institution: faculty-produced an­ thologies (course-packs) are reproduced at the campus duplicating center, sold in the campus bookstore, and placed on reserve in the campus library; students use campus net­ works (and, often, cam pus-supplied devices) to access the Internet, dow nload files, and burn their ow n CDs. The copyright violator of old, that occasional nuisance patron m o­ nopolizing the copier for hours, has becom e every student with a fondness for music and the time and desire to dow nload files. This new w ave of copyright violations is more traceable, is more susceptible to court action, and is more apt to lead to closer scru­ tiny of your library’s overall adherence to copyright standards,1 And the resulting legal action could be every bit as costly and ruin­ ous as a flood or fire. What if you could develop a contingency plan for this man-made disaster? Wouldn’t you try to insure against loss if you could? An institutional copyright policy, involving all segments of the college o r university and su p p o rted by a cam pus-w ide educational program and legal support, may be just the ticket. In addition to disaster preparedness plans, libraries and their parent institutions should consider adopting campus-wide poli­ cies and programs to address copyright con­ cerns. The Copyright Act of 1976 addressed the then newly prevalent technology of p h o to ­ co p iers. In re sp o n se , acad em ic libraries p rom ptly im plem ented copyright policies relating to interlibrary loan procedures and in-house photocopying. However, m any col­ leges and universities today have yet to ad­ dress, o n a campus-wide basis, the copyright issues brought u p by the new est technologi­ cal innovations. The substantial changes in­ tellectual property law has undergone in the past few years have left librarians (and oth­ ers) confused about how to apply laws origi­ nally intended solely for print media to new digital products and distribution systems. A bo ut the auth o rs Kathleen L. Amen is government information librarian and Trish Keogh is cataloging librarian in the Blume Library o f St. Mar/s University e-mail: acadamen@st. marytx. edu andpkeogh @stmarytx. edu; Judy Garrison is head o fE lectronic Acquisitions & Serials Control at the University o f Texas at San Antonio, e-mail: jgarrison@utsa.edu mailto:acadamen@st.marytx.edu mailto:pkeogh@stmarytx.edu mailto:jgarrison@utsa.edu C&RL N e w s ■ Ju ly / A u g u s t 2001 / 725 In the spring of 2000 at St. Mary’s Univer­ sity in San Antonio, a committee of librarians (including the authors) and professors met to study the issues and draft a copyright policy. As the scope of the problem became evident, the committee realized that a quick fix was neither possible nor desirable. The committee also agreed that the entire university commu­ nity needed to be involved in the copyright policy’s development, and that comprehen­ sive and ongoing training was needed through­ out the campus. This article presents some of our findings as well as our conclusions and recommendations on where to look for addi­ tional information. Note that the volatile nature of this area, the resuit of rapidly evolving technological capabilities and legislatively mandated peri­ odic reviews, renders all suggestions provi­ sional. Constant monitoring of the intellectual property scene has become essential for li­ braries and their parent institutions. We offer a framework to modify in response to develop­ ments in the courts and in Congress. Bear in mind that fair use, which seeks a balance be­ tween the interests of copyright holders and content users, is the general principle under­ lying all copyright concerns in educational settings. Distance education and electronic reserves In response to a request from Congress, the Copyright Office delivered a report that in­ cluded recommendations to promote the use of digital technology in distance education.2 Some of these are: • update the language of the Copyright Act to reflect new technologies, • eliminate the physical (face-to-face) class­ room requirement of Section 110(2) of the Copyright Act of 1976,3 • clarify the fair use doctrine, confirm its technology-neutral nature, and explain how the fair use guidelines function, and • give the market room to develop, and reassess the issue relatively soon. As Congress has not revisited these issues, vigilant monitoring of ongoing developments regarding distance education is especially im­ portant. Librarians have generally approached elec­ tronic reserves— a collection of materials made available to students in digital form on a com- . . . th e en tire u n iversity co m m u n ity needed to be involved in th e copyright policy's develo pm en t, and th at co m p reh ensive and ongoing train in g w a s needed th ro u gh ou t th e cam pus. puter network—as analogous to collections in traditional, nondigital formats. In addition to applying fair use standards, libraries need to limit access to electronic reserve collections to currently enrolled students, to post copyright notices on the reserve system, and to remove materials from the system at the end of the course. Music and other m edia In considering fair use standards, one should be sensitive to the five exclusive rights to a copyrighted work enjoyed by the copyright owner—the rights of distribution, reproduc­ tion, modification, public performance, and public display. Each separate right represents an obligation for the user of a copyrighted work, and each may come into play, particu­ larly when providing Web access to multime­ dia. While fair use may allow inclusion of brief audiovisual clips for educational purposes, using “portions” of this type of content is more problematic than the use of printed material. Multimedia use may require considerations beyond obtaining permission from copyright holders for the use of text and photographs. If copyrighted music is to be included, rights must be obtained to the composition; if it is to be synchronized with still or moving images, “syn­ chronization rights” may also be required. Even if the musical piece is in the public domain, if a particular pre-existing performance or re­ cording is to be used, permission must be obtained from those rights holders. Use of copyrighted film and video requires obtaining multiple clearances; the copyright holder of the screenplay, the copyright holder of the original work on which the screenplay is based, the film’s copyright owner, actor re­ use fees, and music permissions may all ap­ ply. If Web access to the work is contemplated, given the borderless nature of the Internet, 726 / C&RL N e w s ■ Ju ly /A u g u st 2001 . . . if w e have com e to regard m edia access as a right, w e m ust be prepared to fu lfill the corollary resp o n sib ilities. worldwide rights should also be obtained for each use.'1 Course-packs Although course-packs do not necessarily in­ volve new technologies, they may come un­ der renewed scrutiny as overall interest in copy­ right issues is highlighted. Course-packs or anthologies are collections of previously copy­ righted works compiled by faculty, photocop­ ied, and sold to their students. Despite the fact that the most famous case in this area, Basic Books, Inc. v. Kinko’s Graphics Corp.? applied to a for-profit operation, the findings could impact any college duplicating center prepar­ ing course-packs without permission from copyright holders. Even if the center derives no profit from their sale, the fair use exemp­ tion might not apply, since the commercial nature of the entity is but one factor consid­ ered in determining fair use. Colleges/universities as online service providers The Digital Millennium Copyright Act’s (DMCA) definition of “online service provider” (OSP) is broad enough to include any campus net­ work.6 Educational or nonprofit status does not provide an institution with automatic exemp­ tion from the provisions of the law, but the act does offer protection from liability for infringe­ ment under certain conditions. The DMCA protections for registered OSPs only apply to the institutions’ functions as a conduit and/or provider of long-term storage capacity for oth­ ers’ content. The protections do not exempt institution-produced content from copyright considerations. W hat you can do to prepare It has been said that the price of liberty is eter­ nal vigilance. Whether as a means of keeping abreast of public affairs or of circumventing totalitarian regimes, the Internet has become identified with freedom. But if we have come to regard media access as a right, we must be prepared to fulfill the corollary responsibilities. Here are some specific suggestions for meeting the copyright challenge: • Develop an educational program for cur­ rent faculty, staff, and students. Copyright awareness should be part of the orientation process for new faculty, staff, and students. • Develop general information resources to assist personnel in complying with copy­ right regulations. A simple Web page with links to information may be adequate, or tutorials and guides such as those listed below may be needed. • Provide guidance for personnel in ob­ taining copyright permissions, such as sample letters and how-to guides. If size or demand warrants, a particular person or office could be designated to handle requests for assistance. • Investigate membership in the Copyright Clearance Center or some other service that provides permissions services for a flat fee. • Decide if your institution should register as an OSP; if so, designate (and train, if neces­ sary) an agent. • Be sure your institution’s legal team has the expertise to advise you in this very spe­ cialized area of the law. • Develop standardized wording for no­ tices to be posted at all points on campus (as well as on all campus Web pages) where copy­ right considerations should be noted. This means not only at photocopy machines, but also near scanners, in video labs, computer labs, classrooms, and even dormitories. New technological innovations have greatly expanded information access for libraries, their patrons, and their parent institutions. However, some of the hidden costs are now becoming apparent, particularly with regard to media delivery. Dramatic developments in intellec­ tual property law are likely to continue, and we in the academic information field must be prepared to monitor the copyright situation and adjust our practices accordingly. Notes 1. Although, to date, no library has been named in a copyright suit, the standard pro­ viso of stockbrokers still applies: past per­ formance is no guarantee of future results. 2. U.S. Copyright Office. Report on Copy right and D igital Distance Education, 1999. 11 Dec. 2000. http://www.loc.gov/copyright/ docs/de_rprt .pdf. http://www.loc.gov/copyright/ C&RL N e w s ■ Ju ly / A u g u s t 2001 / 727 3. U.S. Code, vol. 17, sec. 110(2). 4. Note that ALA has not endorsed any multimedia fair use guidelines at this time. Note also the distinction between fair use doctrine, a part of copyright law, and fair use guidelines. While the guidelines are in­ spired by, they are not part of, copyright law. This distinction is important: while courts may consider such guidelines, their ultimate judgments are based on law, not agreements. 5. Basic Books, Inc. v. K inko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991). 6. U.S. Statutes at Large 112 (1998):2886. ■ ( “An innovative … ” cont. from page 719) percentage of the entering class so that all new students can benefit from the program. We expect that the college’s revision of its first-year program will easily accommodate our modified orientation goals. Moreover we must continue to solicit fac­ ulty support. Faculty who mentioned the li­ brary advisor program early in the semester reinforced our contact with students and en­ couraged students to meet with us in the li­ brary, and this support should continue. Most important, we need to develop longer-term evaluation methods. We will meet with fac­ ulty to see if second- and third-year students’ work reflects better-developed research skills. We also hope to design and implement evalu­ ative tools to provide quantitative data on the program’s effectiveness. Conclusion The library advisor program reflects our em­ phasis on service to students, our focus on individualized instruction, and our sense that technology must be balanced by direct and personal contact. In an undergraduate envi­ ronment that emphasizes research, indepen­ dent study, and the use of primary sources from the beginning of a student’s career, the need for a close relationship with a librar­ ian is often as important to the student’s suc­ cess as his or her relationship to a faculty advisor. Our new library program encourages a solid relationship between librarians and entering students and makes the librarian an essential connection between technology and academic success. ■