Don't Risk It

When you make copies of published material for customers without getting the publisher's O.K. you're the one who will get penalized. Don't let it happen. Get permission.

Like many printers in 1990, Kinko's did not concern itself with getting permission to copy articles and book chapters for course packs. Kinko's proximity to local universities provided a booming business. What could go wrong?

Plenty.

Before it was over, Kinko's Graphics Corp. was slapped with over a half million dollars in statutory damages—and more—all because Kinko's ignored the copyright laws, while including a line citing "fair use" on the inside cover of many of its packets.

Today, many printers, both on and off campus, have gained experience through Kinko's loss. For printers, the most chilling aspect of the huge damage award can be found in a court note that states that the damage award was not based on financial loss to the plaintiff (publisher): "Kinko's had failed to instruct its employees in the pertinent aspects of copyright law. Substantial damages are necessary to deter Kinko's future infringements.'1

Learn The Rules

This brings me to my first point: we must educate ourselves on copyright issues. At the very least, we should all have a copy of the "Classroom Guidelines" that were included in the Report of the House Committee on the Judiciary (House Report No. 94-1476), which accompanied the Copyright Act of 1976. We should also familiarize ourselves with applicable case law.

Before Kinko's, there was the case against New York University, filed by the Association of American Publishers. More recently, Michigan Document Services (MDS) was sued by Princeton University Press. Each of these three cases deals with slightly different circumstances and provides a number of lessons to be learned.

With the NYU case, the minimum allowable uses, (as outlined in the Classroom Guidelines) were effectively transformed into maximum allowable standards, because any use that exceeded the minimum was considered not a fair use. The necessity for a university copyright policy was made clear.

During the Kinko's litigation, both the Classroom Guidelines and the ALA Model Policy (from the American Library Association) were questioned. Although Kinko's for-profit status was addressed in the case, the final decision implied that any photocopying that exceeds the fair use limits is an infringement, whether in a profit or non-profit situation.

The MDS case was different in that it was heard by a panel of three judges who initially found in favor of the copy shop. This panel examined only the four fair use factors (from the 1976 Copyright Act) without considering the Classroom Guidelines. Naturally, the publisher appealed and the case was heard again by 13 judges who overturned the earlier decision. The case was settled out of court after the Supreme Court declined to hear it.

Details on these cases can be found in a book by Kenneth Crews, Copyright, Fair Use and the Challenge for Universities: Promoting the Progress of Higher Education.2 For the MDS case, the Indiana University-Purdue University Indianapolis Web site provides an excellent source for copyright information.

All three cases involved off-campus print shops in association with universities. But the finding of infringement was not based solely on their for-profit status.

Explain The Consequences

After you are armed with knowledge of the case law, you are better prepared to explain the potential consequences of deliberate infringement activity and the need for a copyright policy. The importance of a university (or corporate) policy cannot be stressed enough.

Once the policy is in place, your informational campaign should begin with a memorandum to the faculty. With a policy in place, you are in a better position to convince your customers of the necessity for compliance with the policy and the law.

When Must I Seek Permission?

If you combine as few as two items (i.e. one journal article and one book chapter), you should ask for permission. If an instructor brings the same single article every semester, you must ask for permission. If a professor requests multiple copies of what appears to be more than 10 percent of a book, check your on-line library catalog for the total number of pages in the book. If the requested pages exceed 10 percent, inform the professor and offer to request permission on his or her behalf.

Where Do I Start?

When the program started at George Mason University in 1988, we were writing letters to publishers of out-of-print books. The more I examined the course packets we were printing, though, and the more I read about educational fair use, the more certain I became that we should be writing many more letters.

Soon after that, the Copyright Clearance Center (CCC) launched its Academic Permissions Service. This eased the burden because CCC had contracts with so many book and journal publishers. More recently, it initiated its on-line service, which has streamlined the process even more. The permissions are instantaneous with most of the contracted book and journal publishers.

Most helpful to you, however, will be a good working relationship with your faculty. Providing forms, instructions and deadlines to your faculty will help them to help you.

All the new on-line advances have not entirely eliminated the need to write directly to many publishers. Faxing form letters is the usual process, but publishers and authors are increasingly becoming available via e-mail. If you are having trouble locating an author, send an e-mail message to the Authors Registry (registry@interport.net) and type "Directory" as your subject. I highly recommend developing a publisher database for addresses and information. In any case, whether you are an academic institution or a corporation, you can get on-line with CCC.

Managing The Permissions Process

What are your options for managing the permissions process? In addition to outside companies like CAPCO in Oklahoma and Copyright Management Services out of Connecticut, there are aids available to help you keep the process in-house.

Patrick McNelly at the University of Washington, in Seattle, says that having two DocuTechs is very helpful. His latest idea is to hire one person dedicated to scanning in, cleaning up and adding citations and permission lines to the course materials. This would free his two assistants to do permissions research and requests.

The University of Washington uses the Clarence Copyright system, which comes with a publisher database and keeps track of courses, requests and letters. It also allows you to add new publisher information. The drawback, according to McNelly, is that it is a volatile system, not compatible with Windows.

Considering the amount of information gathered for processing each course pack, April Sheninger, copyright coordinator for the Pennsylvania State University, in State College, Pa., is working on a database to integrate all the pieces of information so that it can be accessed in more than one way. In addition, Penn State is developing a Web site that will eventually have forms available for instructors to submit their requests online.

The most recent development at George Mason is the partnership with our University Libraries on the Electronic Reserves program. In conjunction with the integration of the new technology and the expansion of the responsibilities of the Copyright Assistance Office, we too are in the process of developing a database to incorporate the needs and the functions of both programs to reduce redundancy. IPG

Rosemary A. Chase has been obtaining permissions for George Mason University since 1988. She has participated in and spoken at a number of copyright conferences, including the Copyright Awareness Leadership Workshop and the Internet Law Symposium. She has also made presentations for ACUP, the Big Ten Printers Conference and the Southeastern University Printing and Duplicating Managers Conference. She wrote about copyright issues for the July 1994 issue of IPG. You can contact Rosemary at (703) 993-2562 or at

rbortel@gmu.edu

1 Robert A. Gorman and Jane C. Ginsburg, Copyright for the Nineties: Cases and Materials, University of Chicago Press, 1993, p. 625.

2 Chicago University Press, 1993.

Electronic Access Begets New Legislation

Introduced in the Senate last September, the Digital Copyright Clarification and Technology Education Act of 1997 would release libraries, librarians and technicians from liability for contributory copyright infringement for providing electronic access, information or instruction on electronic access.

This bill would also apply the fair use provisions from the 1976 Act to analog or digital transmission in connection with teaching, research and other specified activities. There is a similar bill pending in the House. Currently, there is no precedent for fair use in the electronic realm.

Rather than wait around for these bills to be signed into law, like so many sitting ducks, managers should polish their communication skills and reach out to faculty and students in an aggressive copyright education program.

Instead of hoping and praying that a publisher will not snag an Internet infringer in the interim, copyright policies to encompass all the currently known electronic applications should be proposed on every college campus and in every corporate in-plant.

Making a good faith effort beats paying lip service to the law.

Find Out More

www.iupui.edu/it/

copyinfo/home.html

www.copyright.com

http://www.utsystem.edu/ogc/

intellectualproperty/cprtindx.htm

http://fairuse.stanford.edu/

http://thomas.loc.gov