9-18-02 AS & E Faculty Meeting: Discussion of the Reserve Policy for the Libraries 1. Tufts University Policy on Fair Use of Copyrighted Material Every Higher Education institution is grappling with copyright and fair use. It is a complex topic even for a lawyer, let alone for faculty and librarian staff. Tufts University has had a Policy on Fair Use of Copyrighted Materials since April 3, 2001, when the policy drafted by ITPOC (Information Technology Policy Oversight Committee) was adopted by the University's ITC (Information Technology Council). There are representatives from each school as well as representatives from the Provost's office, University Counsel and the University Library Council on ITPOC and ITC. The University Library Council, which coordinates the Tufts libraries across the schools and reports to the Provost's office, was asked by ITPOC and the Provost's office to publicize the new policy by creating a website and also to educate the faculty about the new policy. The URL for the University's Policy on Fair Use of Copyrighted Material website is http://www.library.tufts.edu/fairuse/. The site contains the text of the University's policy; statutes and guidelines; tutorials and workshops and FAQs on copyright, fair use, print and online reserves and the law as it applies to special formats such as images, audio and video. The content of the website has been vetted by the Provost's office and the University Counsel, and any new content will also be vetted. Questions submitted to tischfairuse@tufts.edu will be responded to and vetted if the content is new. Educating the faculty has primarily been accomplished by: the website; a postservice memo from the Provost's office to all faculty about the new policy; a seminar on copyright and fair use that was given by Karen Hersey, Senior Counsel at MIT, at the December 2001 University Conference on Faculty Training and Development (this was videotaped and is on the website); memos from deans to their faculty on the topic; and information included in reserve letters sent since December 2001. 2. Tisch Library's Reserve Policy Tisch Library's reserve policy complies with the University's Policy on Fair Use of Copyrighted Material. The summer and fall 2002 reserve memos were reviewed by the AS&E deans, University Counsel and the Provost's office. So what is Tisch Library Reserves doing? We are 1) reminding faculty of the University Policy and that they are responsible for complying with it, and we have drafted a sample publisher permission letter which faculty can use 2) Tisch's printed and webforms have been revised to comply with the University's policy BUT THE POLICY DOES NOT INCLUDE A ROLE FOR THE LIBRARY OF REQUIRING FACULTY TO PROVE THAT PUBLISHER PERMISSIONS HAVE BEEN RECEIVED FOR ANY MATERIAL SUBMITTED FOR RESERVES. If a faculty member submits material that clearly should have publisher permission, the most a library staff member will do is ask if the faculty member is familiar with the University's Policy on Fair Use of Copyrighted Material and then proceed to process the material for reserve. 3. Results of Summer Reserve Pilot The Faculty Library Committee has discussed Tisch Library's Reserve policy. Based on committee feedback, I sought clarification from University Counsel on the library's role in enforcing this policy. As I indicated already, the decision was made that the library should not enforce publisher permissions since the policy assigns the responsibility to procure publisher permissions to the faculty. I advised the Faculty Library Committee that I wanted to do a pilot to work with a few faculty on their fall reserves over the summer. I planned to educate them about the policy and train them on "best practices" on locating publisher permission information, etc. I also expected to learn more about what materials faculty are placing on reserve since the library's primary focus has been solely on processing the reserve material as fast as possible after submission. I was only successful in persuading 3 faculty to participate in the pilot, and I'm going to tell you who they are, some aspects of their course reserves and the results of any publisher permissions required: Professor Joanne Phillips in Classics, who had 29 reserve items for one fall class: 24 titles from journals and 5 books and conferences. Professor Phillips retained copyright for 2 books so no publisher permission was needed. In addition, 2 were ordered and put on reserve and 1 was OP and publisher permission is still in process. Of the articles, 9 permissions were granted, 5 cost a total of $150.00, 5 were open-ended permissions and 10 still have permissions outstanding. Time to date to get permissions: 14 weeks. Professor Lucy Der Manuellian in Art History, who had 16 reserve items for her 3 fall classes: 15 titles from books and conferences and 1 journal article. Professor Der Manuellian retained copyright for 1 journal article and 2 books so no publisher permissions were needed for them. In addition, 6 Tisch titles were put on reserve, 4 were ordered and put on reserve and 3 were out of print and the publisher contacted for permission. It should be noted that the library was able to eliminate 10 photocopy titles by putting on reserve books that the library held and/or ordered. This lessened the actual number of publisher permissions that Professor Der Manuellian had to request for chapters of books. The library can often get copies of in print books quickly and will also try to secure OP books. It accurate to provide the time required for permissions since Professor Der Manuallian was traveling most of the summer. Professor Terry Haas in Chemistry could hotlink all of his assigned readings on his Blackboard course website since all of the readings were in databases Tufts has licenses to. No time required to get permissions! Note: if Professor Haas wanted to place these same readings on print reserve, he would have to write each publisher for permission! 4. Other observations, a suggestion and a recap of the 3 most impt points I have heard faculty say that if they use published material when they are teaching, it is covered by "fair use" so they do not need to get publisher permission. However, the law states the faculty member must take the following "four factors" into consideration in order to determine fair use in each case: The purpose and character of the use, including whether the copied material will be for nonprofit, educational, or commercial use. The nature of the copyrighted work, with special consideration given to the distinction between a creative work and an informational work. The amount, substantiality, or portion used in relation to the copyrighted work as a whole. The effect of the use on the potential market of the copyrighted work. A further clarification is that fair use ONLY applies the first time the material is used, REPEATED USE requires publisher permission. In some cases, publishers will not give open-ended permissions, thereby requiring that permission be sought each time the item is used. I have heard that because faculty have perceived that the library would be enforcing publisher permissions that they are doing one of 2 things: 1) creating course packs for their students or 2) putting all their readings on Blackboard. I'd like to comment on the feasibility of these approaches. Publisher permissions are also required for course packs so you or the course pack producer should be securing permissions. If there is a usage charge for copyrighted material, the library will pay reasonable costs, and we are tracking the costs for each subject area. Copy Centers have been sued successfully for copyright infringement because publisher permissions had not been received. Tufts Bookstore uses XanEdu, a division of ProQuest, to obtain publisher permissions and indicates the permissions process can take up to 8 weeks. With regard to Blackboard, Tufts has negotiated into all of our electronic database licenses a clause that hotlinks to articles can be made without publisher permission. For all other online assigned readings, fair use "rules" apply even if access to the course is limited by password to registered students. In fact, in some formats, the "rules" are tighter especially for images, audio and video. Specific examples of applying the four factors to print and online situations are given on the University's Fair Use website in an effort to give clear guidance in this very complex area for which faculty are now responsible. I want to close with 3 observations and a recap of the 3 major points that I have covered. The 3 observations are: 1) getting publisher permissions requires faculty to modify the way they prepare for their courses, not only to get permissions but to start the process early enough for permissions to be received-some permissions offices are automated and permissions are received fast, and others still will not have responded after you have made 3 good faith efforts to contact them, probably taking 6 weeks minimum, 2) all Tufts licenses include permission for Tufts to hotlink to any articles included in the databases without having to get publisher permission, and 3) seriously consider retaining copyright permission to your articles so that you do not have to get publisher permission to use your own material! The Office of Intellectual Property will supply wording to add to publishers copyright forms to retain copyright to your own material. And the 3 major points I would like for you to remember most about fair use of copyrighted materials are: 1. The Policy on Fair Use of Copyrighted Material is a University policy and it did not come out of Tisch Library. 2. The Tisch Reserves policy is one of education, not enforcement. 3. Faculty should be aware how their own actions affect copyright-if you sign copyright away to the publisher, you must get permission to place a print copy of your own article on reserve OR keep it so you don't have to get permission.