Digital Repository Librarian
5 June 2009
I am not a lawyer!
• I cannot offer advice on speciﬁc situations.
Please don’t ask.
• This is “practicing law without a license” and it is very, very illegal.
• All exercises are hypothetical, though some are based on real
situations. I can’t necessarily tell you “the right answer.”
• Everything in this presentation is my
understanding. I may well be wrong! This
is a murky area at best.
• You’re librarians. READ UP. Don’t take anybody’s word (certainly not
mine!) for anything, except your lawyer’s.
If you have a speciﬁc copyright question or
problem—consult a lawyer!
Really. Just do it. That’s what they’re there for.
If you don’t, you—yes, you!—are a
The ubiquity of loons
• Reduce fear
• Increase conﬁdence
• Explain the basics
• Help you accept ambiguity
• Help you know where to start with
questions and problems you encounter
c op y#
What is it (in the US)?
• A limited monopoly granted by federal law
• over “original works of authorship” that are “ﬁxed in a tangible
medium of expression”*
• ‘To promote the progress of science and the
• Not unlimited! Not forever! By design!
*yes, the Internet counts as “tangible” for copyright purposes
Copyright does not cover...
• Ideas (only their ﬁxed expression)
• Databases and other fact collections! (notably different overseas)
• Methods, processes, systems (patent!)
• Messy exception: software.
• Words. (trademark!) Titles. Recipes.
• Invented languages? Nobody’s sure.
• Natural languages? Nope.
• Works by the federal government
• Works already in the public domain
• no takebacks!
• Copying for certain socially-approved
• Library preservation (“section 108”)
• Classroom use (“the TEACH Act”)
• Limited copying for other reasons:
• For something created 1978 or later:
• Life of author plus 70 years
• For corporate-created works, 120 years after creation or 95
years after publication.
• For something created between 1923
• ... that’s a really good question.
You know something is
copyrighted in the US if...
• Everything I’ve told you is for US works.
• Copyright works differently elsewhere!
(Yes, despite Berne.)
• “Moral rights” of authors
• Copyright term length
• What is copyrightable
• This is a wretched headache.
• If you have an international-copyright question, SEE A LAWYER.
Really. I mean it!
What can you do* with
your copyrighted work?
* and prevent others from doing without permission
Use as part of Broadcast
a new work
Write a sequel
All rights sold separately!
What can you do with
• Sell it, in whole or in part.
• Sign it away without payment.
• For the most part, this is what faculty do with their journal articles.
• License it
• for broad or narrow purposes
• temporarily or permanently
• “exclusive”ly or non-
• free or for pay.
• It’s just like any other license. You negotiate it! (With a lawyer around.)
A “copyright transfer
agreement” is what it
Once you transfer your exclusive copyright over a work to someone else,
YOU NO LONGER OWN THE WORK.
You have no say whatever in what is done with or to it,
AND YOU CANNOT USE IT AS THOUGH YOU OWNED ITS COPYRIGHT.
If your copyright has been violated
• You send a cease-and-desist order.
• Optionally, you ask a judge for a 10-day restraining order.
• You bring a civil (not criminal!) suit.
• You ask for a preliminary injunction against
• The judge may or may not grant it.
• Try the suit. If you win...
• Permanent injunction against further
• Actual damages
• Statutory damages
• ONLY IF THE WORK IS REGISTERED WITH THE US COPYRIGHT OFFICE
before infringement or within three months of publication
• $750-$30,000 at court’s discretion. Up to $150,000 if the court
decides that the infringement is “wilful.” Down to $200 (or $0 for
a nonproﬁt school, library, or archive) if the infringer did not know
and had no reason to believe the copying was infringing.
• Destruction of copies of infringing works
• Your infringement is “willful”
• You knew it wasn’t fair use and did it anyway.
• The work is valued between $1000
“You copied my email? I’LL SUE!”
• Did you register your email’s copyright
with the LoC?
• What are your damages?
E xce pt io ns
• “Reproductions by Libraries or Archives for
their Users, for Replacement or for
• If you own it, you can copy it for:
• Preservation: 3 copies of unpublished work
• Replacement: 3 copies, if you can’t otherwise get hold of it
• For users: 1 copy of an article; 1 copy of other work not
• Published in last 20 years: May copy if not otherwise available
• Educators may use many copyrighted works in
face-to-face classroom situations.
• Distance ed? “Reasonable and limited portions” only... and only “in the
classroom.” (locked-down server)
• Analog materials may be digitized, if used in accordance with the rest of
the law AND if there is no digital version that allows Section 110 uses.
• Does NOT cover materials read or used outside the
• “Accredited nonproﬁt educational institutions” only.
• The institution needs to have a copyright
• Type of work matters!
• Speciﬁcally teaching material? Not covered.
• Non-dramatic literary or musical work? OK to use it all.
• Dramatic literary or musical work? “Reasonable portion” only.
• Institution must strictly control use.
• Copyright and use notice required.
• TEACH Act Toolkit
• Possibly the least-understood concept
• An “afﬁrmative defense” in a copyright
• Principles and guidelines, not hard-and-
How to know for sure
whether a use is fair,
in four simple steps
1. Copy a copyrighted work.
2. Get yourself sued by a legitimate
3. Plead fair use as a defense.
4. Win the case.
AFAIK, this is the only way.
I’m thinking you think this is
a loony way to proceed.
Good. I agree with you.
But that means that what we’re
doing is risk management.
Risk is never zero.
I wish it could be too.
Four-factor fair use test
• Character of the use
• Nature of the work
• Amount of the work copied
• Effect on the market for that work, if
everybody did what you’re doing
Activity II: Fair use?
• A teacher doing “digital storytelling” with his
students ﬁnds that they use photos found via
Google Images. He tells them that they must
credit the maker with the image URL and by
name where possible. Student projects are
posted to a private university server and
deleted when the course ends.
• Does your answer change if the projects are
posted to the open Web?
• What advice would you have for this teacher?
• Don’t answer yet! We may have better answers later.
• A science blogger reproduces a JPG
image of a graph from a 2008
published article on her blog.
• A poetry scholar reproduces a copyrighted
poem in toto in a published book about the
poet. After each line of the poem are 10-15
pages of commentary.
• In a published book, a scholar
reproduces a substantial portion of an
unpublished short story by an author
who died in 1978. The story was found
in a library special collection.
• Another question: who can sue?
• Owning the physical thing does not necessarily mean owning
any copyright associated with it!
• Libraries and archives: beware of copyfraud!
o p y#
• I’m not a serials librarian.
• I don’t do vendor licensing.
• I don’t handle e-reserves or ILL.
• A lot of you probably know more
about these things than I do. Please
My favorite book
• Croft, Janet Brennan. Legal solutions
in Electronic Reserves and the
Electronic Delivery of Interlibrary
Loan. Haworth 2004.
• If you can only buy one book, make it
• Yes, it’s already slightly dated... but so is everything else; book
publishing is a bit slow.
• Not supposed to be a substitute for
• Should not create indirect or direct
proﬁt for library (cost-recovery OK)
• Libraries at for-proﬁt institutions take note!
• Copy must become user’s property
• And user should be using it in approved ways.
• Copyright warnings should be posted
• No “systematic” copying.
What about e-ILL?
• For owned materials
• Make sure you put appropriate warnings on the document.
• Put it in a secure place; take it down once user has it.
• Keep records!
• For licensed materials
• Follow your license. What it says, goes.
• Negotiate your license to allow ILL.
• CONTU guidelines in Circular 21
CONTU: “Suggestion of ﬁve”
• To keep from substituting ILL for a
purchase you ought to make...
• If you’ve ILLed it more than ﬁve times
in a calendar year...
• Buy it, or
• Tell the patron to wait until next year, or
• Pay permissions/royalties/per-article charge, or
• Use document delivery.
Ele ct ro nic
Analog course packs
• 1982: AAP sues NYU and copiers
• Settled out of court; NYU agrees to more stringent rules on
copying copyrighted material.
• 1991: Basic Books v. Kinko’s
• Kinko’s claimed fair use.
• Basic Books won and was awarded hefty damages.
• Best practice for copy shops is now to seek permissions.
• See also Princeton UP v. Michigan Document Services, 1996
The sad story of CONFU
• Conference on Fair Use: 1994-1998
• Conclusion: no conclusion!
• Fair Use Guidelines for Electronic Reserve: never widely
adopted, not “ofﬁcial”
• AAP and Cornell 2006
• ALA 2008
UCSD and Georgia State
• AAP made noises at UCSD in 2005
• AAP: “Show us your ereserves system!”
• UCSD: “Here’s our policy. Go away.”
• Oxford UP, Cambridge UP, Sage vs. GSU
• Seeking injunction, no $$$
• Libraries not the only target of the complaint! CMS, faculty sites also.
• How will this turn out? Who knows? But watch it carefully.
• Open access (links usually don’t infringe)
• Already-licensed electronic copies
• ... but make sure your license permits!
• If your license says “no use in e-reserves without further payment,”
that’s the rule. License trumps fair use!
• Permissions and royalties
• ... including the Copyright Clearance Center setup
• Why “making a market” matters
• Fair use, with all the fuzziness that implies
• TEACH Act doesn’t help us here! (Why not?)
Things to think about
• Subsequent semesters, same instructor
• Or same semester, same class, different instructors.
• CONFU says pay royalties. Opinions differ.
• Secure storage
• Probably closer to spirit of fair use than otherwise!
• Copyright warnings
• Amounts copied
• The AAP guidelines are super-conservative.
• Who bells cat handles permissions?
• Generally not under library control.
• Faculty are all over the place on this.
• Some are afraid to post anything.
• Some think “it’s educational, so it’s all fair use, right?” (NO.)
• The library alone can’t ﬁx the policy
and liability issues here.
• You can raise them with administration, and offer education.
• You can run a good and helpful e-reserve service.
• You can sign up with CCC.
So what to do?
Remember, it’s about RISK MANAGEMENT.
These are institution-level policy decisions.
Educate yourself, read policies from other institutions,
sort out what you think is best,
and then yodel for help.
o p y#
• Remember: owning the physical item
does not confer copyright!
• Remember: owning the digital item does
not pull it out of the public domain!
• Write a digitization license into your
• Think about a policy of immediately
taking down items whose copyright
ownership is disputed.
• Then you can sort it out.
• “Green” and “gold”
• Green: Self-archiving, as in an IR or disciplinary repository
• Gold: Publishing in a journal that makes articles available free
• “Made possible... by the consent of the author or copyright
• “Gratis” and “libre”
• Gratis: you can read it; can you reuse it?
• Libre: you can read and reuse (with credit)
Finding OA materials
• Institutional and disciplinary repositories
• Don’t expect the world’s greatest metadata.
• Directory of Open Access Journals
• Can browse by subject area
• Limited full-text searching
• Google Scholar
• As a self-submit system (like a CMS),
potentially creates copyright liability.
• Again, a takedown policy is a good
• In four years running IRs, I’ve never had a copyright challenge.
• That absolutely doesn’t mean I won’t. I try to be prepared.
• Be extra-careful when faculty want to
archive student work.
• Students own copyrights too!
• And consider FERPA implications.
In your IR license
• Depositor should warrant that they have
right or license to do the deposit.
• IR should be allowed to disseminate
and copy for preservation in perpetuity.
• License should be non-exclusive.
• Of course the IR doesn’t care what else the depositor does with
Digital rights management
• Technological measures to prevent
copying of digital materials.
• Tend to prevent legal copying as well
• Also inhibit digital preservation
• Ever used “security” features on a PDF?
• That’s DRM. If you have a preservation interest in that PDF,
please don’t do that. Keep it on a secure server instead.
• Lots of stuff in it.
• Our concern: “anti-circumvention”
• Illegal to reverse-engineer or try to work around technological
protections on a copyrighted work.
• That means us, too.
• Serious accessibility challenges
• Amazon/Adobe vs. disability-rights advocates
What would you do?
• Your library wishes to digitize a
collection of materials related to an
august alumnus, including published
works, unpublished letters, and
• Lay out a strategy for rights clearance.
• (it’s okay if you don’t have all the answers!)
What would you do?
• A department would like to digitize
and make available a set of honors
papers by students.
• What advice do you give?
What would you do?
• A faculty member wishes to self-
archive her articles from a now-defunct
• What do you tell her?
Copyright in books and
• The author must sign some sort of
agreement with the publisher (why?).
• The exact terms of that agreement
vary widely, and are crucial to present
and future reuse of the material.
• Book negotiations are highly individual
and I won’t discuss them here.
Article agreement styles
• Exclusive copyright transfer
• Exclusive transfer with grant-back of rights
• Reuse in other works; reuse in classroom; posting to Web,
disciplinary repository, IR
• With or without embargo
• Non-exclusive license
• “I can publish this and do other publishing-related things with it, but
what else you do is up to you.”
• “Exclusive for [time], and non-exclusive thereafter.”
• Author retains copyright, grants license
A real agreement
Each Work shall be a “work made for hire” and, as such, [publisher] shall own
all right, title and interest in and to the Works including all copyrights and other
intellectual property rights therein and all renewals and extensions thereof, in
all formats and media, whether now known or hereafter developed, throughout
the world in perpetuity. To the extent any of the Works are deemed not to be
“works made for hire,” you hereby assign to [publisher] all right, title and
interest in and to the Works, including all copyrights and other intellectual
property rights therein and all renewals and extensions thereof, throughout the
world and in perpetuity. You waive all moral rights you have in the Works.
You hereby grant [publisher] (a) a worldwide, perpetual, royalty-free right and
license to use the Work, including all copyrights and other intellectual property
rights therein and all renewals and extensions thereof, in all formats and media,
whether now known or hereafter developed, including without limitation to
publish, display, perform, distribute, reproduce, digitize, transmit, translate,
modify and create derivative works of the Work for all or any purposes including
but not limited to advertising and promotion; and (b) the right to assign or
sublicense all or any of the foregoing rights. You agree that the foregoing license
shall be exclusive until six (6) months following the publication of the Work by
[publisher] and non-exclusive thereafter.
• Boilerplate amendments to copyright
• Reserving commonly-desired reuse rights
• Publishers don’t seem to be real keen.
• I’ve never heard of an article being yanked, but I have heard of
addenda being refused.
• All-online submission processes are another hassle.
• Another idea: roll author’s rights/OA
into journal licensing negotiations.
• California managed it with Springer!
• What authors can archive without
asking publisher permission ﬁrst
• Not comprehensive, but the best there is.
• If that fails...
• look on the publisher’s website for author information
• ask your authors if they keep their agreements (haha!)
The version dance
• “Preprint:” author manuscript before
• “Postprint:” ﬁnal author manuscript,
after peer review
• “Publisher’s copy:” typeset PDF
• Publishers care about this! Authors
often don’t understand it.
• Also note requirements for link and/or
Using other people’s
work in your own
• Images and photographs
• Are copyrighted! Just like text!
• It’s not “fair use” just because you found it on the Internet.
• It’s not “fair use” because you give credit; US copyright law
says nothing about credit!
• Sound and fury...
• Same idea.
• (Please don’t ask me about sampling. ARGH.)
Fair use for video
• Has been a huge problem for
• Guidelines, at last!
statement_of_best_practices_in_fair_use/ (for documentaries)
Reposting the work of others
• If you own a copy legally, you own a
• Passing around that copy is probably okay (“ﬁrst-sale”).
• That doesn’t mean copies of that copy are legal.
• If you lease a copy, you don’t own it.
• You must obey your license stipulations.
• ILL guidelines aren’t bad to have in
mind for intranets etc.
• Remember, we do want authors and publishers to earn money.
• “Link when you can” is a good idea.
• What if you want people to reuse your
• You could grant it to the public domain...
• ... but then anybody can do anything with it.
• Creative Commons is a middle ground.
• Licensing copyrighted works to all comers!
• With certain conditions...
CC license provisions
• BY: Must attribute to creator.
• On all CC licenses except CC0 (public domain dedication)
• ND: No derivative works.
• NC: Non-commercial use only.
• SA: Share-alike
• Release your new work under the same license.
• These can be combined!
Where to ﬁnd
• Has its own CC search, or use
• Flickr Storm: http://www.zoo-m.com/ﬂickr-storm/
• GREAT source of legally-usable images for your projects and your
• Music: ccMixter
• Also see http://incompetech.com/ (yes, really)
• CC-license your own works! Give back.
cu r re nt
• We know they’re under copyright.
• We don’t know to whom.
• Personal owner dead; corporate owner defunct.
• Broken or nonexistent paper trail.
• If you copy it and the owner turns up...
Orphan works legislation
• Goal: Limit liability of honest users
while protecting creators’ rights
• 2006: Fairly library-friendly legislation
• 2008: Less library-friendly legislation
also didn’t pass.
• But now there’s...
• Google partnering with libraries to scan
millions of books and other materials
• Class-action suit by Authors’ Guild
• Settlement in play; not approved as of
• Contract renegotiation between Google
and its library partners
• Covers in-copyright books scanned as
part of the GBooks project
• Public domain is public domain.
• Google Partners is handled separately.
• Participating libraries also relieved of liability.
• Many of these are orphan works!
• Settlement allows Google to display these and make revenue
from them, while reserving some of the proceeds to pay
rightsholders who come forward.
• Books Rights Registry: mediates rightsholder information and
• Will the class stand?
• Some authors complaining that AG doesn’t represent them.
• De facto monopoly?
• Settlement covers Google’s activities only. Any other would-be
scanner is still liable!
• US and EU considering antitrust actions
• Nobody knows if settlement will be
• Commentator to watch: James Grimmelmann (see BePress)
NIH Public Access Policy
• Published articles from NIH grants
must appear in PubMedCentral within
twelve months of publication.
• In communications with NIH, articles
covered under policy must cite PMCID
• Third parties (librarians, grant admins)
can submit to PMC, but the PI has to
• Have to make sure that publisher
allows NIH deposit.
• There have been some ugly-ish situations around this.
• SHERPA/RoMEO has a list of NIH-compliant publishers.
• You should NEVER have to pay to comply with the policy!
• Harvard, Stanford, MIT
• The cleverness of the prior license!
• The opt-out
• Boston University
Open Notebook Science
• Books and articles aren’t the only
shareable products of the research
enterprise any more. Data matters!
• We’re still ﬁguring out how this works.
• Data aren’t copyrightable here... but they may be there.
• What about credit norms?
• Conﬁdentiality and other IRB issues.
• Getting scooped?
• Watch Science Commons.