1. Copyright, Fair Use, and
Institutional Repositories
Katie Fortney
Copyright Policy & Education Officer, CDL
katiefortney@ucop.edu
July 29, 2013
UCSB Library

2. Today:
1. Copyright: some basic
framework
2. Institutional Repositories
& Fair Use
3. Articles covered by an OA
policy as a particular example
Road by Moyan Brenn CC BY http://www.flickr.com/photos/aigle_dore/5951719653/

3. 1. Copyright
Copyright covers
“original works of
authorship fixed in any
tangible medium of
expression…”
– 17 U.S.C. § 102
desk by Nina Hale www.ninahale.com CC BY http://www.flickr.com/photos/94693506@N00/384314276/

4. A copyright owner has an exclusive
right to control:
• Reproduction
• Distribution
• Public
performance and
display
• The creation of
derivative works
– 17 U.S.C. § 106
All That Love All Those Mistakes, Thomas Hawk CC BY-NC http://www.flickr.com/photos/thomashawk/290555514/

5. (unless an exception applies)
Like:
• §108 – some things
libraries can do
• §109 – first sale;
things you can do
with stuff you own
• §110 – classroom
performance
• §107 – fair use! (more
on that one later)
Week 12 ~ Patterns ~ by Nina Matthews CC BY http://www.flickr.com/photos/21560098@N06/8166233559/

6. Q: Who’s the copyright owner?
A: The author(s).*
(Unless and until
ownership is transferred to
someone else.**)
*With works made for hire, the
employer is deemed the author.
**Like a publisher. Or an heir. Or a purchaser.
Or a parent/successor company. Or…
house for sale by owner by Images Money CC BY http://www.flickr.com/photos/59937401@N07/5688027414/

7. 2. Institutional Repositories
IRs “house and provide access to a
variety of different kinds of material
directly related to their institutions’
activities, including scholarship of faculty
and graduate students as well as
documentation of institutional histories.”
- Code of Best Practices in Fair Use for Academic and Research Libraries

8. Most works in an IR will be
protected by copyright.
The IR is reproducing and
distributing them. How is this okay?
1. Permission
2. Fair use
Tiny & Huge by Annie Kavanagh CC BY http://www.flickr.com/photos/spencersbrookfarm/3139409835/

9. Most works in IRs are there with the
permission of the copyright owner…
• Faculty
• Students
• Staff
• University
• Publishers
Crowd by James Cridland CC BY http://www.flickr.com/photos/jamescridland/613445810/

10. …but some things rely on fair use.
i.e., when permission for
a use isn’t needed, based
on a carefully weighed
analysis of four factors:
• Purpose of the Use*
• Nature of the work
being copied**
• Amount of the
copyrighted work being
used***
• Effect on the
market****
- 17 U.S.C. § 107
Stone balancing! by Giles Turnbull CC BY-NC http://www.flickr.com/photos/gilest/132093750/

11. You can also collapse those four
factors as…
1. Was the use “transformative”?
2. Did it use an amount of the original
appropriate to its transformative
purpose?
The Art of Repurposing Workshop by Artfully Unforgotten CC BY-NC
http://www.flickr.com/photos/artfullyunforgotten/7694050984/

12. But that’s still not
helpful for a lot of us.
Enter: Codes of Best
Practices in Fair Use
• Common
situations when
communities of
practice believe a
use is fair
Roslyn_cat by Joshin Yamada CC BY http://www.flickr.com/photos/oceanyamaha/186146223/

13. The Code of Best Practices for
Academic & Research Libraries was
developed by librarians.
• E-reserves
• Preservation
• Digital special
collections
• Web archiving
• Institutional
repositories
• …and more
- arl.org/fairuse

14. Principle 6
“It is fair use for a library to
receive material for its
institutional repository, and
make deposited works
publicly available in
unredacted form,
including items that
contain copyrighted
material that is included
on the basis of fair use.”
organized food bank by InteliusInc CC BY-NC http://www.flickr.com/photos/inteliusgal/6427040045/

15. But only if you comply with the
Limitations
• Make it easy for
copyright owners to
object, and respond
promptly to their
objections.
• Educate authors
about fair use so
they can make
informed choices.
• Provide attribution.
Path through the Dunes by William Warby CC BY http://www.flickr.com/photos/wwarby/4859734760/

16. Optionally, you can also use the
Enhancements
• Have a clear policy
about appropriate
use of
quotations, illustra
tions, etc., in
scholarship.
• Provide advice
about particular
uses on request.
L’s cake by fras1977 CC BY-NC http://www.flickr.com/photos/fras/4541258297/

17. How much IR content
will this help with?
Bits of stuff included as
fair use in larger works
that authors are
depositing, when they
own the copyright in
the larger work, or
have permission to
deposit it.
Stone Wall by Randen Peterson CC BY http://www.flickr.com/photos/chefranden/7146433683/

18. When do you need something else?
• Works created for a
much smaller
audience
(sometimes)
• Whole big works
(think about other
fair use arguments)
• Included bits where
the author signed a
permission
agreement (probably)
Collapsed railroad train bridge by US Army Corps of Engineers CC BY
http://www.flickr.com/photos/usacehq/5905084113/

19. 3. Open Access Policies
Institutional OA
Policies create a
license in faculty
articles
Faculty  institution  faculty  repository (& users)
Cascade by oatsy40 CC BY http://www.flickr.com/photos/oatsy40/8434845889/

20. You can only give permission for
things you control.
Sharing is Caring <3 by FromSandToGlass CC BY http://www.flickr.com/photos/ericabreetoe/5962757367/

21. Images in faculty articles affected
by the OA policy might come from:
• Museums
• Image archives
• Web searches
• Others’ scholarly
articles
… anywhere.
Some will be used with
permission. Others
without.
The Industrial Gallery by Birmingham Museum and Art Gallery CC BY-NC
http://www.flickr.com/photos/birminghammag/4014209134/

22. Images included as fair use will
generally be fair use.
Fair use in article
as published
Fair use in
repository
(Principle #6)
Waterslide on Carnival Conquest by Calgary Reviews CC BY
http://www.flickr.com/photos/calgaryreviews/5776600920/

23. For images used with permission…
it depends.
Read the
image
agreement
OA archiving
does not
violate the
agreement
Treat like
any other
article – post
it!
OA archiving would
violate the
agreement
Waive the
policy for
that article*
Deposit only for
dark archiving
(e.g. in Merritt)
MCS Book Depository by Jonathan Haeber http://www.flickr.com/photos/tunnelbug/3635140550/

24. *What if the author wants to put an
article in eScholarship but is worried
about the included material?
• Instead of getting a waiver, she or he could
– Ask for new/more permission for the
incorporated image
– Find a different image or a version from a
different source
– Deposit a version of the article without the image
• In any case, the policy’s license is only going
to apply to what the author has written, not
the images.
Fresh produce at the Byward Market by Jamie McCaffrey CC BY
http://www.flickr.com/photos/15609463@N03/7578738408/

25. We should only rely on fair use in
good faith, but we don’t have to
be 100% sure.
a) Sovereign immunity
b) 504(c)(2):
“reasonable
grounds”; “employee
or agent of a
nonprofit
educational
institution, library,
or archives”
Suits of Armor by Chris Waits CC BY http://www.flickr.com/photos/chriswaits/5705697075/

26. Questions?
Question Mark Cookies 1 by Scott McLeod CC BY http://www.flickr.com/photos/mcleod/7004084680/