Ryer Banta Amy Mikel Patty Northman Jungho Ryu

Fair Use at University of Washington

Executive Summary Electronic materials have thrown the world of copyright into an increasingly complex situation as rights holders and institutions like the University of Washington (UW) scramble to regulate usage and access. Fair use, an exception to U.S. Copyright Law, allows for usage of copyright-protected material without the permission of the copyright holder. Fair use is an especially important provision for educational institutions and the individual students and faculty. This report investigates four stakeholders - UW Libraries, UW faculty, UW students and the publishing/regulatory industry - and their subsequent positions regarding fair use at UW, specifically in regards to electronic course materials (eReserves). Introduction/Overview of Local Institution Founded in 1861, the University of Washington (UW) is one of the oldest public universities on the West Coast. With over 250 degree options and more than 4,000 faculty, UW serves more than 92,000 students annually. UW, the states flagship university, is a mighty academic force as well as an internationally recognized research institution. Naturally, UW Libraries, a conglomerate of over 17 general and subject-oriented branch libraries, plays a major role in the universitys academic and research efforts. Risks and issues surrounding the distribution of copyrighted works is understandably a major concern at UW, especially with the advent of electronic course materials. The university manages an online resource called UW Copyright Connection, intended to serve as a policy and reference guide on copyright issues in an academic setting. While the university itself has not adopted official guidelines for determining fair use, the Guidelines for Fair Use in Education, developed from a variety of sources external to UW., is posted on UW Copyright Connection as a reference. A brief overview of intellectual property and copyright law will give essential context into how the information issue of fair use has begun to manifest itself at the university in the present day. The Information Issue Electronic materials, being instantly reproducible, have thrown the world of copyright into an increasingly complex situation as rights holders and institutions like UW work to effectively regulate and control access and use of their materials. Fair use is an especially important provision for educational institutions and the individual students and faculty. The basis for copyright begins with the problematic concept of intellectual property. Tarleton Gillespie, in his book Wired Shut, explains that it is hard to imbue cultural expression with the word property, because culture cannot be consumed. He uses the terms nonrivalrous and nonexcludable (25) to explain

that use of cultural expressions does not deplete it and that it can be simultaneously enjoyed by many. Newer technologies such as the Internet, file sharing, and computer software have the ability to make sharing, copying and using easier. As witnessed in the larger cultural discourse, these abilities raise issues about how best to regulate these technologies and allow for the maximum human flourishing. The copyright laws in the United States derive from section 8 of the Constitution, which states that Congress shall have power [] to promote the progress of science and useful arts [] by securing rights to authors [] for a limited time. The intent of copyright is to encourage creation of original works while simultaneously protecting creators rights. Gillespie (2007) draws attention to the balance between public good and private gain. There are sixteen statutory provisions that establish exceptions to copyrights (Crews 2006), but the most well known is Section 107, the fair use doctrine. Section 108, which allows librarians and archivists specific uses, is also relevant to this investigation. The importance of the fair use doctrine is that it allows exceptions to copyright without asking permission from the copyright holder for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research (U.S. Code Title 17 Section 107). Although it is written in clear language, there are multiple interpretations of what is actually fair, and in deciding cases four factors are considered by the legal system: 1) the purpose whether or not it is for commercial use 2) the nature of the copyrighted work 3) the amount of the work 4) the effect upon the potential market The fair use clause is left intentionally vague, with room for interpretation and personal judgment. Not all four criteria must be met to be considered fair use. No specific usage amount (pages, paragraphs or percentages) is codified by law. Although the strength of fair use is its flexibility, this versatility can lead to uncertainty among educators, librarians and students. A survey of 63 academic and research librarians concludes that some of the detrimental effects of lack of consensus on how to apply fair use may result in high costs in unnecessary licensing, reduced service to users and misaligned priorities due to risk aversion to lawsuits (Adler, Butler, Aufderheide, and Jaszi, 2010). The Problem In this report, we are examining UWs policies and practices which regulate the distribution of electronic course materials, and the subsequent balance between respecting U.S. Copyright Law while allowing room for fair usage provisions. Electronic course materials present special challenges to balancing copyright and fair use, as they are significantly easier to reproduce and distribute than their physical counterparts at the library. In further examining this problem, the core stakeholders investigated are: UWs Libraries, faculty and students, and the publishing/regulatory industry. UW Libraries hopes to provide access to high quality materials in the most legally clear fashion. Faculty have a similar goal, specific to their classes and students,

but are less engaged with the legal ramifications of granting unlicensed access. Students wish to have the most flexible access to the materials required for their studies, and pay little attention to legal implications. Academic publishers hold two very different positions: 1) during the publication process, publishers generally encourage authors to invoke fair use practices 2) however, being concerned with proper compensation, publishers discourage fair use practice of their published materials, and often invoke the law to enforce payment. Each stakeholder is governed by fair use policies and practices, which reflect a variety of perspectives. STAKEHOLDER: Libraries The general goal of academic libraries is to provide access to information for the university population served. In response to the Internet becoming widely available, in 1995 UW Libraries developed an extension of physical reserves in the form of electronic reserves (eReserves). UW Libraries are responsible for creating and maintaining copyright and fair use policies for eReserves on campus, in addition to providing technical services such as the physical servers and library staff to assist with posting on eReserves. UW Libraries plays a central role as liaisons between faculty, students and publishers. There is a fine balancing act between the Libraries public policies and the actual practice or cultural norms of using eReserves. Official Libraries policies are decided by the eReserves operations group: six librarians representing all three campuses, and large and small libraries. This group is chaired by Mary Van Court of the Health Sciences Library. The group brings suggestions to Thom Deardorff, the Libraries Copyright Officer, who has ultimate authority over policy making. For legal counsel, Deardorff frequently consults with Clark Shores representing the UW Attorney Generals office. As compared to some universities, which license all materials or set certain quotas, Van Court promotes using a checklist from Kenneth Crews, which weighs all four fair use factors. An interview with Van Court reveals her attitude that fair use is primarily a legal defense: The only way you know that something is fair is to get sued and have a judge tell you its fair. Otherwise there is no way. It is a defense against getting sued. You can believe it is fair but that doesnt make it fair. - Mary Van Court, Health Sciences Library & eReserves Operations Group Chair Initially, the rhetoric of the UW Libraries eReserves policies appears to promote fair use. The library clearly states that its policy on reserve readings is derived from the fair use provisions of the United States Copyright Act of 1976 (Copyright and Reserves, n.d.) Furthermore, The sole purpose of library reserves is to facilitate student access to readings for university classes (Copyright and Reserves). However, upon closer reading of these policies, several factors emerge in conflict with fair use promotion. Despite this policys clear reference to fair use provisions, there is a tendency at UW to avoid risk and purchase distribution rights to course materials. This tendency can be uncovered in discussion of library and instructor

responsibilities. UW Libraries mandates that it must evaluate purchasing or licensing of material that is placed on reserve if possible, negotiate licenses for online resources that include permission to use materials in e-reserve systems and course packs whenever possible. Particular attention should be given to noting the possible wide interpretations to phrases if possible and whenever possible. In presentation, this series of statements suggests an increasing likelihood of purchase or license. UW Libraries does purchase many of its materials through licensing and contracts, which provides access to rather than ownership of copyrighted material (Pressman, 2008; Van Court, 2011). For example, the Health Sciences Library licenses 80-90% of its materials, rendering fair use a moot point (Van Court, 2011). In terms of alternatives, the policies also suggest that faculty consider using course packs, which cuts down on the cost of printing for students. Furthermore, the eReserves file size upload limit is 4 MB, which discourages posting large amounts of material from the same work. So the public rhetoric of promoting fair use is somewhat dwarfed by the actual practice of licensing, promoting alternatives such as course packs, and technical limitations on size. The public policies serve to protect the university from the risk of copyright lawsuits. UW Libraries does not act in a position of enforcement, which is left to the legal system. UWs faculty are left to decide which material is appropriate to place on eReserves, weighing the four factors of fair use. The Libraries role in training faculty is limited, and departmental norms dictate methods of course content delivery (Deardorff, 2011). The actual practice of how much the fair use right is implemented and what the policy states may differ. One area of UW Libraries that is most progressive and pro-fair use in its policy for eReserves streaming media: audio and visual. Since approximately 2000, the Odegaard Undergraduate Librarys Media Center has been streaming eReserves audio files for music classes, which is seen as justifiable through fair use. When John Vallier, head of UWs Distributed Media Services, came to the university in 2008, he immediately began working to offer streaming video for course reserves, using audio as a model. Again, faculty must make the fair use determination, weighing the four factors. However, media content producers and distributors see streaming services as a new business opportunity that they wish to regulate. As the industry further develops these services it will likely attempt to limit institutional activity. This will be discussed further in the Publishers and the CCC stakeholder section. There is a tendency among librarians, especially video librarians, to side with the distributor and not exert fair use within the context of their work. - John Vallier While two of our interviewees predicted that linking material directly from course websites will eventually replace eReserves, UW Libraries currently has much to contend with in terms of balancing its promotion of fair use with the institutional pressure to minimize copyright infringement risk. By choosing to

license much of its eReserves materials, UW Libraries are helping to drive up cost of education for UWs students, while taking the right of fair use determination away from UWs faculty. STAKEHOLDER: Faculty For this report a select number of faculty from the Information School were interviewed. This group cannot be claimed to be representative of all faculty in all departments of UW. Nor can this small sampling of three professors speak for all the faculty of the Information School. The iSchools faculty are particularly sensitive to issues surrounding access to information, as this is a core concern of the information profession. Faculty generally want to facilitate the most flexible access to the highest quality course materials for their student. When faculty provide students electronic access to course materials they must determine if UW Libraries has already licensed the material - whether it be text or streaming media - for this type of use. If not licensed electronically, faculty must determine if fair use applies. Copyright and fair use policies concerning course materials are expressed to faculty through The Instructors Guide to Reserves, eReserves and Course Packs and Copyright and Reserves outline of policy and responsibility, both of which are provided by the UW Libraries. The instructors guide states the instructor is responsible for complying with U.S. copyright law. The guide explains that the UW Libraries licenses many electronic materials, which can often be placed on reserve without additional copyright permission. The policy also suggests that material that has not been licensed for electronic use should be generally limited to a single chapter or article. The Instructors Guide is written from a seemingly neutral angle, discussing the benefits and shortcomings of modes of delivering course materials, but these statements can be unpacked to reveal positions and biases of the policy. The guide addresses the economic concerns of electronic reserves by subtly recommending that students purchase course packs and books. The guide highlights potential student difficulties with longer electronic readings by suggesting that downloading and printing can be time-consuming and frustrating. The guide also states that on a home printer a pdf may take up to two minutes to print. The most important way that the Instructors Guide undercuts the benefits of eReserves for faculty is by reiterating that E-reserves require faculty to take responsibility for copyright compliance. In context of the above persuasions, this reminder of responsibility can be interpreted as a warning. Although much of the electronic course material available to faculty is purchased or licensed, the individual faculty that we interviewed are aware that fair use provisions may apply to certain uses. There is not a consensus among faculty as to what amount and type of use will exceed fair use provisions. This lack of consensus is likely due to the vagueness of the fair use section of law, which in turn carries over to UW Instructors Guide. So, while UW Libraries grapples with how much of their eReserves material to purchase and license (in order to minimize institutional risk), UWs faculty grapple with the nature and number of unlicensed materials to make

electronically available. In contrast, this process of making copyright-protected course material available in the classroom is often completely invisible to the typical UW student. STAKEHOLDER: Students A University of Washington student may be studying in residence at one of UWs three campuses (Seattle, Tacoma or Bothell), or pursuing a distanceeducation option; UW additionally has a presence at more than 50 locations throughout more than 10 countries. UW students may be seeking a Bachelors, Masters, Doctorate or Professional/Continuing Education degree. As to be expected, UWs thousands of students are frequent consumers of copyrightprotected course materials. When accessing course material via eReserves, students are presented with a message that reads as follows: The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted materials...If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of fair use that user may be liable for copyright infringement. Students must acknowledge this message in order to gain access to their course materials online. In a survey of 41 undergraduate and graduate students, 56% indicated that they always click Accept without ever having read this message (41% indicated that they have read the message at least once). 59% of survey respondents chose eReserves as the preferred way to access course materials (as compared with course packs, textbooks, or other options). The survey indicates that UW students prefer the low cost and ease of use of electronic course materials, but do students have a clear understanding of the risks associated with sharing and reproducing these digital materials? 26 survey participants (~63%) felt they have some knowledge of fair use and copyright, 8 (~19.5%) felt they have a little knowledge of the subject, 4 (~10%) felt they are well informed, and 3 (~7%) felt they know nothing (it should be noted that survey results may be skewed to a higher percentage of students fair use familiarity, as many our of LIS 550 classmates were survey participants). Students are most likely not aware that their right to access, download, print and read eReserves course materials has either been purchased by UW Libraries or has been determined as a provision of fair use by faculty; and that this right does not extend beyond the classroom. As has been noted, UW Libraries protects itself from risk by forcing students to acknowledge liability before accessing their course eReserves. However, as with their physical reserves, UW Libraries assumes there will be some normalized, low-risk (read: small probability of legal action) student sharing and reproduction of copyrighted course materials. What is the norm? If the risk is approaching zero then the university is not going to be real concerned about enforcing fair use to the nth degree. - Thom Deardoff, UW Libraries Copyright Officer

Our survey results indicate that students strongly prefer the ease of use and low cost associated with electronic course materials, but are only mildly aware of fair use and the subsequent risks associated with sharing or reproducing copyrighted materials. Furthermore, in the multi-step process of making electronic course materials available to the UW student body, the students themselves are often far removed from the publishers who originate, license and distribute these materials for academic use. STAKEHOLDER: Publishers and the CCC To investigate the perspectives of academic publishers, we chose to examine UW Press and the Association of American University Presses (AAUP) as sample representative stakeholders from this industry. For this report, Marilyn Trueblood, Managing Editor at University of Washington Press was interviewed. We also closely examined and interacted with the Copyright Clearance Center (CCC), a national regulatory organization which operates strongly in favor of the intellectual property rights of content creators. As a member of AAUP, University of Washington Press strictly follows 1) Guidelines for Fair Use of Our Publications from University of Chicago Press (University of Chicago Press, n.d.) and 2) Chicago Manual of Style 16th edition (University of Chicago Press Staff, 2010). This edition expresses the position of University of Chicago Press Staff in regards to fair use practices and the publication process. Given the ad hoc nature of fair use and the absence of rules and guidelines, many publishers tend to seek permission if they have the slightest doubt whether a particular use is fair. This is unfortunate. The right of fair use is valuable to scholarship, and it should not be allowed to decay because scholars fail to employ it boldly. Furthermore, excessive permissions processing tends to slow down the gestation of worthwhile writings. (P. 190-191). AAUP has two opposite positions when it comes to fair use practices. On the one hand, AAUP would like to promote fair use practices in the publication process for the authors and academic publication. In order to encourage the fair use practices in the publication process, University of Chicago has established the Guidelines for Fair Use of Our Publications. Section IV, Quantitative Guidelines, defines fair use quantitatively: [no] more than 5,000 words, [no] more than 5 percent [and no] more than 300 consecutive words from the Source Work. (University of Chicago Press, n.d., p. 2). As long as authors adhere to these guidelines, they dont need to seek permissions from AAUP for uses. On the other hand, AAUP has a tendency to discourage fair use practices of their published materials. According to Marilyn Trueblood, Managing Editor at University of Washington Press, the CCC plays an important role in discouraging fair use practices because all the materials that go to eReserves and course packs are subject to either get permissioned or licensed from the CCC unless fair use applies obviously. Although the CCC is well aware of fair use as a legal

right, they do not uphold a fair use policy; their business model is to minimize any fair use practices to maximize revenues, as well as to represent all the copyright holders, including University of Washington Press and all the members of AAUP. It is safe to say that the CCC views fair use as a form of defense against a legal ruling of copyright infringement. Courtney Wegener, Educational Services Coordinator, of Copyright Clearance Center says, We do not have a fair use policy that we share. That is determined by the institution or company and can vary from one to the other. Its a risk assessment that each company makes. Also, Fair Use is a defense to a claim of copyright infringement which is then decided on by a judge evaluating the four fair use factors. (C. Wegener, personal communication, February 16, 2011). In conclusion, publishers and the Copyright Clearance Center work to protect intellectual property rights, and tend to define fair use as a privilege. In contrast, publishers still would like promote fair use practices for authors involved in the academic publication process, due to an intimate understanding of the time and effort it takes to request permissions whenever authors have any doubts on fair use practices. Lawsuits and their Effect In recent years, four academic institutions have either been threatened by lawsuit or sued for copyright infringement. These lawsuits have an indirect effect on universities nationwide. It is also worth noting that these lawsuits have been aimed at institutions; as of yet there have not been any lawsuits that have targeted faculty directly. In 2003, the American Association of Publishers (AAP) put pressure on the University of California at San Diego to be more transparent with their eReserves. This motion asked them to essentially become copyright enforcers for the publishing industry (PSP bulletin). In 2007, AAP turned their attention to Cornell University, who in turn simply reposted their eReserves policy, without significant change, to make it more visible to faculty. This action resulted in a 70% decrease in eReserves requests (Bridges, 2007). In April 2008, Georgia State University was sued by Cambridge University Press; this is an ongoing case as summary judgments have been filed by both sides (Pike, 2010). Lastly, in January 2011 the Association for Information and Media Equipment filed suit against University of California at Los Angeles for streaming media copyright infringement (Inside Higher Ed, 2011). In all four cases, publishers or educational media companies viewed university activities with electronic course materials as threats to their business. All four universities built their defense cases around claims of fair use. These lawsuits create a social atmosphere of fear of litigation, and it can be argued that these power plays are working to diminish fair use in educational settings. I think this will go the way of UCLA situation where there is a lawsuit...This has a lot to do with preserving for future generations. Either we need to change what we do; reconfigure how we see ourselves, and

what our role is. Or we need to reevaluate what is ethical and what is legal. - John Vallier, Head, UW Media Center Although contemporary legal suits involving copyright and fair use are followed with interest at UW, particularly within the Libraries, there is not any immediate legal pressure to re-evaluate its fair use policies. However, it has been acknowledged that the rulings from other cases may result in significant modifications to eReserves policy and practices, particularly in the case of streaming audio and video. Although there is not a perceived immediate threat, perhaps there are steps UW can take to develop progressive policies that encourage ethical fair use practice. Further Considerations In light of recent legal action against academic institutions who have employed fair use, it is tempting to recommend that UW insulate itself against a similar fate. The only way for the university to fully prevent lawsuits for misuse of copyright-protected material is to purchase and/or license as much course material as possible. But minimizing risk in this manner will also serve to marginalize UWs academic right to fair use. This will also serve to further drive up the cost of course material, and subsequently, the cost of education for UWs students. Due to our national recession, UW is faced with a harsh budget crisis. Between the years of 2009-2011, the University of Washington lost over $132 million in state funding, roughly 30% of its state appropriation. In an attempt to balance the Washington State budget, Governor Gregoire has proposed further state reductions for 2011-2013. If this budget passes, UW will have lost over 50% of its state appropriation in just three years. The emerging digital landscape is the perfect opportunity to slash the cost of education for UWs students or is it? As mentioned above, faculty must make the fair use determination when putting unlicensed course materials online. Electronic course materials are easier to distribute, share and copy than their physical counterparts. Due to a limited understanding of copyright law and fair use, the likelihood that students will misuse digital course material continues to increase. How then can UW strike a new balance between respectfulness of copyright law and rights holders, cost to its students and promotion of fair use? Recommendations Based on our study of fair use practices at the University of Washington, it is recommended that a two-pronged approach be implemented: best practices development and training. Best practices development should be implemented through collaboration and communication of UWs departments and units which deal directly with copyright and fair use. Different departments and units may disagree on best practices, but a dialog would be helpful in determining overall campus best practices. Although guidelines for fair use are already relatively balanced, policies can be strengthened to include more information regarding fair use

where appropriate. The goal is not to avoid lawsuits, but to encourage cultural sharing within a framework that is both legal and ethical. Further training and availability of information is recommended as well, since most of the responsibility and decision-making rests with faculty, staff and students, and many have inadequate resources for navigating copyright issues. In light of recent budget cuts, costs can be kept to a minimum by utilizing inexpensive materials which are freely available through a Creative Commons license. Faculty orientation could include a short workshop, along with continued access through UW policy websites. Staff involved with eReserves and course websites should also have clearer policies and procedures in place, so that they may make informed decisions regarding fair use. Lastly, copyright modules be incorporated into courses (where appropriate) to facilitate student understanding of fair use. We highly recommend access to Know Your Copyrights: Using Copyrighted Works in Academic Settings, an excellent resource which has already been developed and is designed to be shared under the Creative Commons license. Conclusion Fair use -- and its subsequent manifestations at the University of Washington -- is an incredibly complex topic. In this report, we strove to bring more clarity to a specific issue on campus that has been affected by fair use practices, and to define the main stakeholders general positions and overall areas for improvement. Yet fair use is a rich and interesting topic, one which warrants further exploration as electronic course materials continue to grow in popularity at universities throughout the world.

References
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