More University Copyright Policy Concerns

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  • Perhaps I'm just feeling insecure, but since there seem to be people on here who know, I'm going to ask a few questions.
    I've looked over a few policies in detail, now. I like the approach taken by UT - it's extremely no-nonsense - but its approach necessitates the use of hyperlinks, and we'd like a one-page, all inclusive document. I found another policy at FGCU (, but I'm a little concerned that, if we were to adopt a similar approach, our faculty and/or staff might find the technicalities irritatingly restrictive. Knowing from other reading that fair use is not determined by a set quantitative amount (the whole consideration being, as a whole, a relative thing with four factors), I was wondering what sort of advantage might be gained through the use of such specific restrictions. Knowing that professors like to design curricula once and re-use all the things that work, there seems to be little sense in telling them they cannot use a course-pack for subsequent terms. Am I misunderstanding the policy or is there some nicety of copyright law that I'm missing?
  • Moreover, seeing as the restrictions in this policy are, seemingly word-for-word, a re-iteration of the Fair Use Guidelines, I suppose my question addresses the advantages of requiring patrons to follow them.
  • The policy you found was last reviewed on 12/11/98. At the time, most of the publicly available policies took the same approach. I was looking at the time. In Nov. 2003, the Statment on Fair Use and Electronic Reserves ( explained the four factor approach that we all use here. Since the release of that statement, I have seen policies shift towards the four factor approach. I can't prove a cause and effect relationship, but I believe there is a strong connection between the statement and the shift in policies.

    I believe that the Guidelines have absolutely no value for the reasons explained in Kenneth Crews' "The Law of Fair Use and the Illusion of Fair-Use Guidelines" Ohio State Law Journal Volume 62, Number 2, 2001, pg 599. In 1998, many librarians believed that the guidelines represented a "safe harbor," but as the article explains:

    "Without near unanimity among the publishers, authors, and other copyright owners, the concept of a truly safe harbor for any set of guidelines is fatally flawed. As long as the right to sue or even threaten to sue a party remains, the harbor has rough water and mines."

    I also recommend Ann Bartow's "Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely" University of Pittsburgh Law Review, Volume 60, pg. 149:

    "If we don't fight compression, we will doom ourselves to a scope of fair use that allows law students to make unencumbered videotapes of every episode of Ally McBeal and The Practice, but requires law professors to secure permission and remit royalty payments before distributing a newspaper article concerning an actual trial."
  • For more fair use policies:
    I think most of them use the hyperlink approach, but it seems to me that all of them can be reformatted into a single document.
  • I'm glad to hear that people who know copyright well have objections to these guidelines, too. Something about it seems rather unfair to institutions who are simply trying to teach and to earn.
    In my research on this subject, I came upon the "Model Policy Concerning College and University Photocopying . . . " and I was considering simply utilizing it in our policy, since it seemed to take a less restrictive approach than some. I was also going to provide, in the introductory statements, a proviso that these are simply guidelines to assist good judgement, that this is NOT 'what the law says' and there are many ways legitimate exceptions, saying 'if you think your needs are such an excuse, please speak with the reference librarian, but know that if you choose not to follow the guidelines and/or the judgement of the library staff you accept liability'. Now, is this enough to cover the proverbial bases while also trying to provide a more concrete concept to patrons of what ought to be done? I mean to look into the options you listed above, too, but do you have any advice to offer against going the "Model" route?
  • typo: second sentence, last word, should be **learn. It would be an entirely different issue if we were trying to *earn* . . . -ahem- . . . my apologies
  • I read the Model Policy many years ago and barely remember it. I skimmed it just now and it seems ok.

    You might want to incorporate this checklist into the policy:

    Have you covered all the bases? Remember, I don't work at a university. I think if you use the Model Policy along with your additions, you will have a workable policy. However, I'd still run it by a lawyer.

    A lot of people are on vacation now, and we're in the process of recruiting new members. If you wait a while, you might get some feedback from someone who works in a university.
  • Marian, I was just wondering if you were assuming that if your policy says that "thus and so" is fair use and everything else is not, that your faculty will interpret that as a limitation on what they can actually include in their course materials. I would certainly agree with you that if that's how they'll see your policy, then any restrictions at all would not be welcomed. The policy would probably be ignored.

    But they know about the option to use licensed materials (that your library has licensed for school use), don't they? I'm sure they use things available freely on the public Web as well (implied licenses). Are they also aware of the option to get permission from the CCC for things that exceed the scope of fair use? And does your institution provide a service to obtain permission for things in coursepacks that exceed the scope of fair use? I'll bet your library gets permission for interlibrary loans that exceed the Contu guidelines (so called, Rule of 5)? Wouldn't your school also get permission for electronic reserve materials or things posted in Blackboard (or whatever CMS you use) that were used in place of coursepacks if their contents exceeded the fair use standard that you applied for coursepacks? If you include these alternatives in your policy, it helps faculty understand that whether something is fair use or not, they can still use it. They just need to process their list in a way that assures that one way or the other, the rights to use it are secured, hopefully by the institution, rather than by them personally.

    Bottom line -- if you inform them of fair use's limits without including next steps when fair use isn't enough, I'm pretty sure you'd be wasting your time. Your policy will be ignored. Show them their options and provide help to use the options (ie, how to search your library's databases for articles that are already licensed; how to get institutional support to obtain permissions on readings that are not already licensed or available freely on the Web (implied licenses)).

    You can do this in one page, but it would be hard to do in any depth without linking to the explanations. You can put the basic core info on one page (overall approach; here's what's fair use; here's what to do if your use exceeds fair use) but the how to do it part would probably take you at least to a second page. You'd need to be a very good editor to get it precise enough without leaving out important stuff.

    Good luck! Don't be discouraged!

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