Copyright presentations often focus on “the rules” without sufficient attention to practical decision-making. Yet because application of the law so often depends on specific facts and circumstances, this approach can leave a big gap for actual library practice. This workshop will focus on situations and how to make specific decisions; discussion of the rules and principles of copyright law will, it is hoped, emerge from those applications. Although common situations will be discussed in order to provide a comprehensive look at copyright decision making, participants are encourage to bring real-life problems for the group to consider and discuss.
Presenter:
Kevin Smith
Director of Scholarly Communications, Duke University
As Duke University’s first Director of Copyright & Scholarly Communications, Kevin Smith’s principal role is to teach and advise faculty, administrators and students about copyright, intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. At Duke, Kevin serves on the University’s Intellectual Property Board and Digital Futures Task Force, and he convenes the Open Access Advisory Panel. He is the current Chair of the ACRL’s Research and Scholarly Environment Committee and serves on the SPARC Steering Committee. His highly-regarded web log on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.
1. Copyright from the
outside in
A participatory workshop
Kevin L. Smith, M.L.S., J.D.
Copyright and Scholarly Communications Office,
Duke University Libraries
2. What to expect
• Scenarios from libraries
• Scenarios from teaching
• Scenarios you suggest
– Speak up
– Write them down
• Interludes on the law
Copyright and Scholarly Communications
Office, Duke University Libraries
3. Start with a favorite ? for libraries
• We have several VHS tapes which our
Counseling department still assigns for
students to watch. We have looked for
commercially available copies on DVD, but
some are not available in that format. Our
understanding of copyright is that we could
copy a commercially produced DVD we own
without permission, but only for preservation;
we would not be able to allow it to
circulate, patrons would have to view it in our
building.
Copyright and Scholarly Communications
Office, Duke University Libraries
4. 2 parts to this question
• Section 108 – source of their understanding
about copies and digital format
• Section 107 – Fair use
• Same analysis whether this is for classroom
viewing or physical reserve.
Copyright and Scholarly Communications
Office, Duke University Libraries
5. Section 108 (c)
• Replacement copies of published works
– Up to 3 copies
– If damaged, deteriorating, lost, stolen or obsolete
• Is VHS?
– Unused replacement not available at fair price
– If digital, “not made available to the public in that
format outside the premises of the library.”
• Premises? The Public?
• Could make 2 copies in different formats
Copyright and Scholarly Communications
Office, Duke University Libraries
6. Bottom line…
• § 108 probably permits reformatted copy if
– Held on reserve for in-library viewing or for circ. to
faculty or students for classroom viewing
– VHS copy is sequestered
• § 107 (Fair Use) probably also permits:
• Purpose – classroom viewing (§ 110(1))
• Nature – creative
• Amount – entire film
• Market – no impact if digital unavailable and 1-to-1
replacement
Copyright and Scholarly Communications
Office, Duke University Libraries
7. Interlude – four distinct provisions
• Section 107
– Fair Use – broad & flexible
• Section 108
– Library preservation and ILL
– Does not preclude fair use
• Section 109
– First Sale – permits library lending
• Section 110
– Allows certain public performances
Copyright and Scholarly Communications
Office, Duke University Libraries
8. Another library issue
• Our Instruction Librarian has been asked to
make a discipline-specific video about
research methods. The video will be included
in an online course. May he use screen-shots
from the relevant database in the video?
What about if an actual search on the
database is filmed or captured?
Copyright and Scholarly Communications
Office, Duke University Libraries
9. What do you think?
• My analysis
– Almost certainly fair use
• Transformative
• Educational purpose
• Informational content
• Small parts
• No market impact (or positive impact)
– Might still be wise to ask permission
• Vendor likely very willing
• Might have instructional materials
Copyright and Scholarly Communications
Office, Duke University Libraries
10. Time for comments or questions
Copyright and Scholarly Communications
Office, Duke University Libraries
14. Course packs and e-reserves
• Is it legal for a professor to have a TA
photocopy a set of readings to distribute to
students?
• Can I place an article obtained through ILL on
reserve in the library?
• We scanned a book chapter last semester for
a professors Blackboard site and now she
wants to use it again? That’s illegal, isn’t it?
Copyright and Scholarly Communications
Office, Duke University Libraries
15. Course packs and e-reserves
• Is it legal for a professor to have a TA
photocopy a set of readings to distribute to
students? Fair use & course pack cases
• Can I place an article obtained through ILL on
reserve in the library?
• We scanned a book chapter last semester for
a professors Blackboard site and now she
wants to use it again? That’s illegal, isn’t it?
Copyright and Scholarly Communications
Office, Duke University Libraries
16. Course packs and e-reserves
• Is it legal for a professor to have a TA
photocopy a set of readings to distribute to
students? Fair use & course pack cases
• Can I place an article obtained through ILL on
reserve in the library? First sale
• We scanned a book chapter last semester for
a professors Blackboard site and now she
wants to use it again? That’s illegal, isn’t it?
Copyright and Scholarly Communications
Office, Duke University Libraries
17. Course packs and e-reserves
• Is it legal for a professor to have a TA
photocopy a set of readings to distribute to
students? Fair use & course pack cases
• Can I place an article obtained through ILL on
reserve in the library? First sale
• We scanned a book chapter last semester for
a professors Blackboard site and now she
wants to use it again? That’s illegal, isn’t it?
Georgia State Case
Copyright and Scholarly Communications
Office, Duke University Libraries
18. An interlude on recent cases
• Kirtsaeng – reaffirmed first sale regardless of
the origin of the lawful work.
• HathiTrust – Fair use even for mass
digitization, based on transformative purpose.
• UCLA – Dismissed challenge to streamed
digital video. Called fair use argument
“plausible.”
• Georgia State – Challenge to library e-reserves
& faculty use of LMS
Copyright and Scholarly Communications
Office, Duke University Libraries
19. Georgia State case
• Trial judge found that 70 of the 75 challenged
excerpts were fair use.
• She imposed strict portion limit:
– 10% or one chapter, whichever is less.
• She rejected rule against fair use for
subsequent uses.
• Four factor analysis favored libraries
• Case is being appealed.
Copyright and Scholarly Communications
Office, Duke University Libraries
20. Advice for E-Reserves
• Balance forms of access
• For fair use, stick to small portions
• Always keep course sites closed
• Be creative
– Think about what makes your site a unique
exercise in pedagogy.
• Seek permission when a larger excerpt is
needed.
Copyright and Scholarly Communications
Office, Duke University Libraries
22. Scorecard
• Inclusion of all titles
• Right to transfer
delivery platforms
• Right to lend content
indefinitely
• Integration with catalog
• Access for the disabled
• Single User?
Alternatives?
• Number of loans?
• Delayed sales and/or
Variable pricing?
• Remote checkout?
• Consortial or
Interlibrary loansz?
Copyright and Scholarly Communications
Office, Duke University Libraries
23. Licensing Issues
• ILL (founded on sections 108 and 109)
– Could preserve first sale by closing local access if
ebook is loaned.
• Archiving & preservation
– Needs to be DRM free
• Instructional use
– Can we license for course adoption
• Text Mining?
Copyright and Scholarly Communications
Office, Duke University Libraries
24. Language from ScienceDirect
The Interlibrary Loan Policy for electronic journals and books is included in each publicly funded institutional
ScienceDirect subscription agreement. In short, the provision allows and provides for the use of electronic
journal articles and book chapters as a source for the fulfillment of Interlibrary Loan (ILL) requests with some
stipulations.
Interlibrary Loan Conditions
This grant applies only to journals and books published by Elsevier. Other publishers may have different
conditions or may not permit interlibrary loans. Elsevier grants the subscriber the right to use articles and book
chapters from subscribed content in the case of ScienceDirect as source material for interlibrary loans subject
to the following conditions:
• The ILL request comes from an academic or other non-commercial, non-corporate research library located in
the same country as the subscriber.
• The requested article or book chapter is printed by the subscriber mailed, faxed or transmitted by Ariel (or a
similar ILL system) to the requesting library. For libraries in the U.S. complying with the CONTU guidelines, it is
not necessary to first print the article or book chapter and then scan it for electronic transmission.
A Note on National Boundaries
Interlibrary loan, and the legal basis for such activities, may vary from country to country. As an international
publisher, Elsevier has worked hard to establish an international level playing field, where all libraries can
provide documents to libraries on the same terms and conditions. Those terms are intended to support
domestic ILL. They are also intended to rein in those libraries who have abused ILL and provide what is more
accurately described as document delivery to anyone anywhere in the world in the name of ILL.
In the US, ILL operates within the CONTU guidelines, which provide a balance between free ILL and payments
to publishers. The responsibility for adhering to CONTU rests with the requesting, not the fulfilling, library.
Requesting libraries located outside of the US are not part of the CONTU agreement and have no restriction on
the number of copies requested on a free (no royalty) basis. That is not a level playing field.
Copyright and Scholarly Communications
Office, Duke University Libraries
25. Get started with a fun (and real)
question
Copyright and Scholarly Communications
Office, Duke University Libraries
I'm a faculty member and I'm doing a lecture on
how to write grants for our faculty development
program. They record and post these lectures
on the university's public website. On my slides
I have different photos of
Mr. Potatohead here and
there and am concerned
about whether Hasbro
could sue us if I include
them.
26. What do you think?
• Is this fair use?
– How are they used? Just illustrations, or are they
discussed?
• Other issues?
– Trademark.
• Standard is likelihood of confusion
– License
• If obtained from Hasbro site, may be licensing terms
Copyright and Scholarly Communications
Office, Duke University Libraries
28. Video for teaching
• Professor wants to show a clip from a popular
film that is on YouTube in class. I know she
can show a DVD that we own in class, but
what about something like this?
– Section 110(1) allows public performance for face-
to-face teaching.
– Unless video was not lawfully made and professor
had reason to know that.
Copyright and Scholarly Communications
Office, Duke University Libraries
29. Video for teaching
• Professor wants to make a DVD of film clips for
class. Is this OK?
– She also want to use them for her online version
of the same class. Is it the same?
Copyright and Scholarly Communications
Office, Duke University Libraries
30. Video for teaching
• Professor wants to make a DVD of film clips for
class. Is this OK? Yes.
– She also want to use them for her online version
of the same class. Is it the same? No, but still OK
• Fair use
• Anti-circumvention & exception
• TEACH Act (§ 110(2))
Copyright and Scholarly Communications
Office, Duke University Libraries
31. Video for teaching
• A professor wants to show a video in class that
the university does not own.
– Can she use a DVD borrowed from Netflix?
– Can she show a stream from Netflix from her
personal account?
Copyright and Scholarly Communications
Office, Duke University Libraries
32. Video beyond the classroom
• A speaker in our chapel wants to show a short
clip from a popular movie as part of his
sermon.
– Is it OK to show the clip?
– Our chapel services are recorded. Is it still OK?
– What if we put the recorded service on our web
site?
Copyright and Scholarly Communications
Office, Duke University Libraries
33. Streamed video “reserves”
• Can we digitize DVDs and stream the films
through Sakai so students in a specific class
can watch an assigned film on their own time?
– Interplay of sections 110(1), 110(2) and 107
Copyright and Scholarly Communications
Office, Duke University Libraries
34. Interlude -- Fair use
• Most flexible, least certain, exception
– We use it every day!!
• Based on four factor analysis
– Purpose of use, nature of original, amount
used, impact on market for original
• For last 20 years, courts have looked most at
whether use is “transformative
Copyright and Scholarly Communications
Office, Duke University Libraries
35. Transformative fair use
• Transform the original itself, or put to a wholly
new purpose
– Bill Graham Archives
– Turnitin
• Issue of market substitution.
• 3 questions to ask
– Does it help me make my point?
– Will it help my readers/viewers get the point?
– Have I use no more than needed to make the point?
Copyright and Scholarly Communications
Office, Duke University Libraries
36. Fair use problems
• Student made a video for class and wants to
use a popular song as the “soundtrack.”
• Faculty member is writing a book about
movies and wants to use film stills to illustrate
her discussion.
• Library has created an exhibit of early 20th
century magazine illustrations related to the
Dreyfuss affair and wants to put some up in an
online version.
Copyright and Scholarly Communications
Office, Duke University Libraries
37. Interlude -- Owning copyright
• Since 1989, copyright is automatic
• Owned by the “author”
– Author may be employer
– Authorship often shared
– Interplay between law and campus policy
Copyright and Scholarly Communications
Office, Duke University Libraries
39. Submitted scenario
We are accepting video resources from a large, multi-
organization NSF grant. The NSF grant is with each individual
institution, not with the principal investigator (this is critical
when money is involved because the university is ultimately
accountable for expending the money and faculty frequently
move on. When that happens, a new P.I. is generally
appointed by the university). The NSF encourages open
access to resource works but is not clear about who owns the
copyright. We are trying to determine who owns the
copyright for each institution. Is it the institution, since they
contracted with the NSF, the individual faculty member (who
may move on in the middle of the grant), or??? Most
university copyright policies reference published work or
patentable concepts but not research products.
Copyright and Scholarly Communications
Office, Duke University Libraries
41. Ownership scenario (1)
• A professor created a online course for our
school. Now she has left to teach at another
university. We still want to use some of her
modules in a course we continue to offer. She
says we cannot, and that she will be offering
the same course, with the same content, for
her new employer.
– What’s the solution?
Copyright and Scholarly Communications
Office, Duke University Libraries
42. Ownership scenario (2)
• A graduate student has written an article that
has just been published by an important
journal in his field. Yeah! But now he wants to
use the article verbatim as a chapter in his
dissertation.
– Can he do this?
Copyright and Scholarly Communications
Office, Duke University Libraries
43. Ownership scenario (3)
• The library hired a graphic designer to create a
logo for our library that we want to use on our
web page and all our library publications. Our
new director would like to make a small
modification to the logo, but the designers
says we cannot do that without her
permission.
– The logo is ours, right? We don’t need no stinkin’
permission!
Copyright and Scholarly Communications
Office, Duke University Libraries
44. Interlude on policy
• Think in terms of both ownership and
interests
– Who needs to use the works? Can you create
licenses?
• Matrix of different creators, types of work, and user
interests.
• Don’t confuse policy with
– Law
– Guidelines
– Best Practices
Copyright and Scholarly Communications
Office, Duke University Libraries
45. Miscellany – a digitization strategy
• Remember that you are creating a new
(transformative?) context for the individual
items.
• Four prong strategy
– Consider what might be in the public domain
– Seek selected permissions for key materials
– Remember & rely on fair use
– Have a “talk to” policy
Copyright and Scholarly Communications
Office, Duke University Libraries
46. Miscellany – liability in the library
• We have a new scanner in the library, and I
keep seeing students scanning whole books.
When I do I should tell them stop, right?
– Can you be sure work is not PD and scan is not fair
use?
– Remember §108(f)(1) 0n library liability
• Generally, recall that library employees less
liable than others when they make good faith
fair use decisions (§ 504 (c)(2))
Copyright and Scholarly Communications
Office, Duke University Libraries
Editor's Notes
How many of you have similar question about converting VHS formats to DVD?