Libraries and the Need to Educate Users about Copyright and Fair Use

Citation

Bay, M.T. (2001), "Libraries and the Need to Educate Users about Copyright and Fair Use", Library Hi Tech News, Vol. 18 No. 5. https://doi.org/10.1108/lhtn.2001.23918eaf.003

Libraries and the Need to Educate Users about Copyright and Fair Use

Mark T. Bay

Introduction

The rapidly increasing trend in academic librarianship of moving as many resources as possible to the World Wide Web, as well as the need to archive resources for future use, has led to many challenges for the profession. Among the most important, yet least understood, among this myriad complexities are the issues surrounding copyright and the concept of fair use. Who actually owns the rights to items available online? If items are made available through digital technology, will it be necessary to place restrictions on access and use of these materials (Ruschoff, 1997)? While the legal and ethical implications of copyright can be difficult to assess, librarians have a professional responsibility to educate users on these important issues. The basics of copyright law are extremely important in academia, but librarians, those academic personnel most likely to be on the "front lines" of copyright infringement battles, are not doing enough to educate patrons about copyright and how it affects the higher education community. Traditionally, copyright is an issue for interlibrary loan, reserves, or photocopier maintenance librarians and para-professionals. The instruction programs of academic libraries very rarely deal with educating patrons about copyright, while training them in the basics of information literacy or the intricacies of the research process. Clearly, this is an area in which library instructional and information literacy programs could be making a much-needed impact.

While a basic knowledge of the legal ramifications of copyright is becoming absolutely essential to thrive in the digital environment, staff and users of academic libraries, by and large, display a distinct lack of knowledge of how copyright laws affect them. Such a lack of understanding can and very commonly does lead to copyright infringement, which can result in costly litigation between copyright owners and colleges or universities where the violations occur. The revolution in the electronic delivery of information is greatly reducing the market share for traditional publishers and other producers of intellectual property, which means that copyright owners are going to be more aggressive than ever in protecting their intellectual property rights against any and all infringements (Schockmel, 1996).

While intellectual property producers and owners are more aggressively asserting rights as copyright holders, students, faculty, and staff of academic institutions show a serious misunderstanding and even sometimes a willful flouting of copyright restrictions, especially the idea of fair use. On October 6, 2000, the Indiana Daily Student, the daily student newspaper of Indiana University-Bloomington, reported that Metallica (a rock band) sued Indiana University, Yale University, and the University of Southern California for providing access to Napster (an online music trading service) and facilitating the theft of their intellectual property. IU, Yale, and USC blocked access to the Napster Web site to avoid the lawsuit, drawing loud cries of protest from the student bodies. Said one man at IU, according to the story, "... I do not see anything wrong with sharing files, so I don't think [Napster] should have been banned." Similar responses were reported from the other institutions named in the suit. Faculty misconceptions about copyright law are also common. Although many faculty members are unaware of this, fair use does not apply to all materials used for an educational purpose. Certain conditions must be met for fair use to apply to protected materials. "Determination of fair use is to be made on a case-to-case basis, with an examination of the particular circumstances of each use" (Schockmel, 1996, p. 16). It is obvious that library staff and the users of academic libraries need to be taught about copyright and how this complicated and important issue affects them.

Review of the Literature

While even a brief overview of copyright law and precedence is far beyond the scope of this paper, a brief examination of the legislation and its application is useful. The United States Constitution specifies that "Congress shall have the 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" (Schockmel, 1996, p. 15).

Fair use, while not specified in the Constitution, has long been seen as an important facet of intellectual property protection. While authors and inventors are granted protection for their work, the courts and Congress have realized the value of allowing limited use of protected materials for research and educational purposes, a balance between ownership and use for the advancement of knowledge. This balance was first affirmed in US courts in 1841, and Congress formalized this balance with the Copyright Law of 1976. Courts have connected the concept of fair use to the First Amendment, deeming the right of free access to information to be the basic foundation of the freedom of inquiry (Schockmel, 1996).

The list of items protected by copyright is extremely broad. The law now provides automatic protection for printed materials, software, works of art, videos and films, photographs, and almost anything found on the Internet (Crews, 2000). Copyright law "protects 'original works of authorship' that are 'fixed in any tangible medium of expression'" (Crews, 2000, p. 7). Workseligible for copyright protection include, but are not limited to, the following: literary works, dramatic works (including accompanying music), musical works (including any accompanying words), pantomimes and choreographic works, pictorial, sculptural, and graphic works, films and other audio-visual works, sound recordings, and architectural works. Crews points out that these categories need to be examined as broadly as possible; computer software are considered "literary works" and maps fall under "sculptural, and graphic works" (Crews, 2000, p. 7). Before 1978, copyright only covered works when the works were registered with the US Copyright Office and when the copyright symbol (©) and notice were included. For works produced after 1978, copyright protection automatically extends to an original work as soon as it is fixed in tangible format, regardless of the presence or absence of the symbol and notice. "The absence of formalities today does not place the work in the public domain. Their absence is no longer even a reliable clue about whether a work is protected" (Crews, 2000, p. 17).

Section 107 of the Copyright Law of 1976, where fair use is defined, states that copyright-protected material copied without permission from or payment to the creator "... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright" (Schockmel, 1996, p. 16). According to Crews, "The basic structure of the [copyright] law ... proceeds to carve out a number of exceptions to those rights [extended to copyright holders]. The best known of those exceptions is 'fair use'" (Crews, 2000, p. 5). He goes on to explain the other, more specific exemptions: "... provisions for library copying, performances and displays in classrooms and distance learning, making backup copies of computer software, and putting works in different formats for users with disabilities" (Crews, 2000, p. 5). He cautions librarians to "be careful about jumping to conclusions when using these exemptions; they are subject to rigorous conditions and limits" (Crews, 2000, p. 5).

The act states four factors that must be taken into consideration when determining fair use. For one, the purpose and character of the use, including whether the use is for commercial gain or non-profit and educational purposes, must be examined. Second, the nature of the copyrighted work needs to be considered. Courts are more likely to rule copyright infringement fair use if the copyrighted work is factual, rather than literary or artistic. Third, the amount and substantiality of the portion used in relation to the work as a whole must be considered. Courts have treated smaller portions more favorably than larger percentages. Finally, the effect of the use of the protected material on the potential market value of the work must be considered (Schockmel, 1996, p . 16). According to Schockmel, "... [Section 107] was crafted in an ambiguous fashion; it does not attempt to define the boundaries of fair use. Determination of fair use is to be made on a case-by-case basis, with an examination of the particular circumstances of each use" (Schockmel, 1996, p. 17).

The Copyright Law of 1976 gives no specific guidelines to libraries for fair use, but Congressional reports surrounding the passage of the Act provide more concrete practices for libraries. Libraries are allowed to make single copies of a copyrighted work, if a replacement for a damaged or lost copy, where a replacement copy is not available for a reasonable price, is needed, or a copy is limited to a small portion of a larger work and the patron plans to use it for research or scholarship. The duplication of books or journals to avoid purchasing them, as well as providing copies for patrons without regard for their intended use of the copies, is prohibited. Guidelines allowing libraries to make copies for interlibrary loan programs were later developed, as long as these copies did not replace the need for a subscription in the borrowing library (Wagner, 1998).

Before 1998 intellectual property entered the public domain 75 years after first publication (if published before 1978 when the Copyright Law of 1976 went into effect), or the life plus 50 years of the author if published in 1978 or later (Wagner, 1998). In 1998, Congress significantly revised copyright law in two major areas, mostly due to significant increases in the use of electronic media. 1998's Digital Millennium Copyright Act gives publishers the right to protect their property through encryption, passwords, and other technological means, while still providing some materials for use under the fair use doctrine for preservation, distance education, and electronic loans of the material. The Sonny Bono Copyright Term Extension Act increased the protection of post-1978 published items from life of the author plus 50 years to life plus 70 years. Libraries and other non-profit organizations are able to treat materials in the last 20 years of their protection as if they are in the public domain, as long as the uses are non-commercial and a reasonable investigation is made of the commercial value of the use (Marley, 1999).

Instruction Librarians and Copyright

Copyright legislation and case law are Byzantine in complexity, and much is left to the discretion of libraries and users. As publishers of print and electronic resources protect their rights more aggressively than ever before, due to the tightening of the traditional publication market (Schockmel, 1996; Wagner, 1998), conflicts between users and copyright holders, with libraries in the middle, are sure to increase and intensify. Educating library users and library staff about the many facets of copyright law and fair use will give them more of an understanding of the law and how to work with copyright owners to protect their rights, while preserving fair and free access to information.

The support of copyright and protection of intellectual property are contested by some in the library profession. For example, Duff writes that, by upholding and teaching about copyright and even citation of works used in research, "instruction librarians unwittingly propagate a right-wing ideology that is at odds not only with the laudable tradition of libraries as 'non-manipulative' and 'convivial' institutions, but also (and more significantly) with the solemn mission of higher education" (Duff, 1995, p. 135). In response, Miller supports the citation of sources as necessary for allowing later scholars to identify works and follow the development of ideas through time, as well as to differentiate the current discussion of a topic from what the author has added (Miller, 1995, p. 138). Protection of the rights of intellectual property producers is not considered in his rebuttal.

Alberico writes about the need for libraries to provide instruction and access to "recombinant information" in the age of instantaneous electronic access. He states that information needs to be disassembled, reassembled, and sent out to users in forms that they can use, and access is more important than ownership (Alberico, 1995). Most of his suggestions have severe ramifications for copyright, but copyright and intellectual property ownership issues are not even mentioned or considered. Professional trade newspapers like the Chronicle of Higher Education often report about libraries', library associations', and colleges' and universities' struggles against publishers to protect free access to information. Truly, libraries and universities must fight for scholarly access to information, but they need to balance this against publishers' needs to remain in business with a reasonable profit. "It is essential that the public understand that US creativity would suffer without the protection that copyright provides" (Wagner, 1998, p. 12).

Therefore, copyright is an issue for which library instruction programs must provide training to users and staff. As Berger writes, "Whether librarians question the law is irrelevant; students must understand the law as it exists today and debate its merits elsewhere" (Berger, 1995, p. 142). Library users tend to demonstrate a lack of understanding of the purpose of copyright law and the concept of fair use. One UCLA student demonstrated this in an interview with the San Francisco Chronicle published September 9, 2000: "We're college students; we should have access to everything." Although his statement refers to the banning of Napster on campus, the fact that the music being copied and traded is of questionable educational merit and negatively impacts the market for the music is not considered. The overall impression of academic library patrons is that, since they are at an educational institution, all copyright infringement is fair use. This impression is widespread, and is wrong (Marley, 1999).

Conclusion

Clearly, academic library patrons are lacking in fundamental knowledge about copyright law and the concept of fair use. Faculty and students are increasingly demanding instant access to everything they need online, and are upset when it is unavailable. Course readings, books, and journal articles, while serving an educational purpose, are still subject to copyright law. Many patrons believe otherwise, which leads to the increasing possibility of legal action being taken against universities and libraries by publishers and other providers of intellectual property. In this age of tightening markets in the publishing industry, publishers are more likely to take action against academic institutions for copyright violations to preserve the shrinking profit margins brought on by these tightening markets (Wagner, 1998). Library instruction programs concentrate on training users to utilize the resources of the library and on developing information literacy, but have done little work in the area of copyright and fair use. While the former areas are important, someone in the academic community must work to educate the community about copyright. As the group of professionals most often caught in the middle of copyright infringement disputes, librarians have a duty to teach their patrons about these issues and hopefully avoid these disputes.

Copyright is not going to go away any time soon, and will become even more of a contentious issue in the future. Instruction librarians must work with the academic community in order to educate them about the implications of copyright and fair use. The concept of copyright has been a part of US government since the very beginning and, while the issues of intellectual property ownership, copyright law and fair use are complex and contentious, they balance the rights of intellectual property owners and incentives to create new works with the right of the public to freely use copyrighted materials to expand the base of knowledge. The concept of fair use has developed to facilitate the free use of intellectual property for educational and research purposes, but does not give complete protection from prosecution for infringement to every member of the academic community. Academic libraries need to start teaching library users about these issues, and it is not before time to begin researching and developing instructional experiences and tools on copyright and fair use. Equipping the academic community to more fully understand and appreciate the issues associated with copyright is yet another valuable service that librarians can provide to the academic community as a whole.

Mark T. Bay (mbay@iupui.edu) is Visiting Assistant Librarian on the Instruction, Reference and Research Teams at the Indiana University-Purdue University, Indianapolis Library.