Copyright in Scholarship and Instruction & an Open Access Primer

Copyright in Scholarship and Instruction
and an Open Access Primer
Gail McMillan
Digital Library and Archives, University Libraries, Virginia Tech
Feb. 6, 2012
U.S. Constitution
Article I Section 8 Clause 8
 [The Congress shall have power] "To
promote the progress of science and useful
arts, by securing for limited times to authors
and inventors the exclusive right to their
respective writings and discoveries."
Copyright Law: U.S. Code, Title 17
Section 102: Original authorship stabilized
when fixed in a tangible medium of expression
Section 106: Exclusive rights of creators
Limitations to exclusive rights
 Section 107: Fair use
 Section 108: Library services
 Section 110: Instruction--TEACH Act
Who owns the copyright?
 Creators of original works
 Life + 70 years
 Employers: works for hire
 95 years from publications, or
 120 years from creation
 Creators' assignees
As copyright holder, you control
 Reproduction
 Modification
 Distribution
 Public performance
 Public display
Permission or license to use a
copyrighted work is NOT required if
Work is a fact or an idea
– Phone numbers, earth is round
Public domain
– Does not mean the Internet/worldwide web
– Intellectual property not owned or controlled by anyone
• US government documents
• It’s very old:
Fair use
Fair Use Myth
It's OK--it's for educational purposes.
Before using someone
else's work without
permission, weigh ALL
VT Fair Use Analyzer
Fair Use Checklist
1. Purpose and
character of use
2. Nature of the
3. Amount,
4. Effect
1. Purpose and character of use
 Commercial or educational use
 For profit or not
 Degree of transformation; value added
 For criticism, commentary, news reporting,
teaching, scholarship, research
FAIR USE 1 of 4
2. Nature of the copyrighted work
 Worthy of (extensive) protection?
 Character of the work?
– fact (information) or fiction (imaginative)
• Published facts weigh in favor of fair use
• Unpublished original expressions weigh in favor of
seeking permission
FAIR USE 2 of 4
3. Amount and substantiality
 Use only what is necessary
 Quantity in relation to whole work
 Quality in relation to whole work
FAIR USE 3 of 4
4. Effect
 Harm to potential market or value of a work
after a portion has been used separately
from the whole
FAIR USE 4 of 4
Fair use: weigh each factor
 VT Fair Use Analyzer
 Did the scales tip in favor of fair use?
 If not
– Modify your use
– Use library services: Title 17 U.S.C. Sec. 108
 Ereserve
 Why not use Scholar?
– Ask for permission
After you’ve checked
Sherpa RoMEO
– publisher copyright & self-archiving policies
Copyright permission services
Copyright Clearance Center
Association of American Publishers
– http://
You asked but they never responded.
You don’t have permission.
Orphan Works
Good faith, diligent, unsuccessful search
US Copyright Office report (2006-01)
The “Orphan Works” Problem (2008-03-13)
– Statement of Marybeth Peters, Register of Copyrights,
to House Subcommittee on Courts, the Internet, and
Intellectual Property
Legislation, amendments, no vote.
Assume it’s copyrighted
Copyright re Libraries: Sect. 108
Ground Rules
Preservation copying
Photocopy Services: Copies for private study
ILL: copies for InterLibrary Loan
– No commercial purpose
– Open to outsiders
– Notice on copies
Reserve Services: copies for students in a course
Copyright for Instruction
 USC Title 17 Section 110
– Limitations of certain performances and
– Face-to-face classroom settings
 Broadened by TEACH Act (Nov. 2, 2002)
– Technology Education And Copyright
– Must have an institutional copyright policy
Fair use standards in online education
Modified existing copyright law for
Accredited nonprofit educational institutions
Mediated instruction
Integral part of class session
Limited to enrolled students
Accurately informed about copyright compliance
Reasonably prevent
 Retention beyond course
 Unauthorized further dissemination
TEACH Act: Works allowed
Show entire nondramatic literary works
– News, poetry, speech
– Show entire nondramatic musical works
Everything else in reasonable and limited portions
– Plays, movies, operas, TV shows, choreography
TEACH Act--You must not use
 Works marketed primarily for distance
 Unlawfully made or acquired copies
 Materials meant for additional study outside
of class
– EReserve, Reserve, Scholar (i.e., CMS)
TEACH Act--You must
 Transmit as an integral part of class session
– Regular part of systematic, mediated instruction
Use copyrighted materials only when directly related to the
Limit access to students enrolled in the course
Have an institutional copyright policy & inform students
about it
Block further dissemination
Copyright Resources from VT DLA
Copyright Homepage
Library Copyright Policies
Fair Use
Copyright and ETDs
Request Permission: Sample letter
Publishers copyright & self archiving policies
Copyright Resources
Copyright Advisory Office, Columbia
 Crash Course in Copyright (UTAustin)
Library of Congress, Copyright Office
Legal Information Institute (Cornell)
Stanford University Libraries
WIPO Study on Copyright Limitations and Exceptions for
Libraries and Archives (Crews, 2008-2-26)
TEACH Act Toolkit (NC State)
Open Access: A Primer
What is it, really?
Gratis, libre, green, gold: decode the jargon
Intellectual Property @ VT
Peter Suber, Joy Kirchner, VT Provost’s Office
Charles Eckman, Patricia Hudson, Dan Morgan:
Open access is
using the Internet to make research
literature publicly available
“There are better ways to pay the bills than
by charging readers and creating access
Why remove access barriers?
Accelerate research
Enrich education
Share the learning of the rich with the poor and
the poor with the rich
Make this literature as useful as it can be
Lay the foundation for uniting humanity in a
common intellectual conversation and quest for
Legal basis of Open Access
Consent of the copyright holder
for newer literature
Expiration of copyright
for older literature
What’s gratis and libre OA?
Gratis OA
Libre OA
No barriers have been removed
Does not allow more than fair use
Author has removed permissions barriers in advance
Both gratis and libre remove financial barriers.
OA authors allow Internet users
 Read
 Download
 Copy
 Distribute
 Print
 Search
 Link
 Index
 Pass text as data to
Any other lawful purpose
Copyright still gives
authors control over the
integrity of their work and
the right to be properly
acknowledged and cited.
Roads to Open Access
Retain enough rights
 Authors have copyrights until they transfer
 Journal publishers
 Authors share their rights by permitting nonexclusive use of their copyrighted works.
Director of OA Journals
NIH PubMed Central deposit
University/library repository: VTechWorks
VT Policy 13000
VT Faculty Handbook, IP Policy 13000
Traditional results of academic scholarship,
i.e. textbooks, literary works, artistic
creations, artifacts
Contribute to the university’s benefit by their
creation and continued use by the university
in teaching, further development,
enhancements of the university’s academic
Presumption of ownership is to the author(s)
VT Faculty Handbook
Intellectual Property Policy 13000
Presumption of ownership is to the author(s)
University rights limited to free/no cost use in
What does green and gold OA mean?
Gold OA = peer-review + publicly available
– Subsidized by host (university, society)
– Charge fees to accept articles
• Paid by authors, employers, grants
• VT Libraries/Office of Research may provide resources
Green OA = self archiving, IR
– DLA, VTechWorks
– Both may restrict access for a limited duration when
required, but the goal is to provide public access to
this information, not just access to the current
university community.
OA charges
Subsidized Faculty Benefited
UC Berkeley
Simon Fraser
Ranks of Benefiting Faculty
UC Berkeley
Simon Fraser
Charles Eckman Reported at
ALA Midwinter 2012
Faculty will publish OA when insulated from
publication charges by funds from whatever
– Researchers will use extramural funds
– University OA fund will be tapped
<1% of a library’s materials budget makes a big
Experimentation is
– Practiced by the publishing community
– Valued by campus community
– Vital for libraries
Kircherner’s Economics of Quality