Initial Copyright Recommendations, Background, and Feedback Received

Introduction

In October 2010, a legal advisory was issued by the Copyright Working Group of the Office of the General Counsel regarding a lawsuit against Georgia State University (concerning specifically, the use of eReserves). This advisory prompted discussions in various corners of the university. Several groups, including librarians and the ETLG, have acknowledged a need to better understand the issues related to copyright and fair use systemwide and to coordinate our campus-level responses.

In some respects, we are passing from a time when familiarization with the topic of copyright law and dissemination of best practices was our primary objective, and entering into an era when the recognition of our concrete legal responsibilities (as defined by litigation) and the specific behaviors needed for compliance have emerged as our new, critical focus. 

Faculty can often become frustrated by the lack of procedural clarity, the paucity of academic support (both human and financial) to assist them in confronting the challenges associated with the determination of fair use, and the sometimes excessive length of time and effort involved in securing copyright permission approval. Support in this area is inconsistent across the UCs and, in some cases, faculty have willingly or unwittingly infringed or engaged in activities that have skirted the boundaries of compliance.

• Focus: These recommendations pertain to use of copyright protected materials used in our educational technology systems (e.g., articles, book excerpts, video, as well as student and faculty content produced for instructional purposes - such as recorded in-class presentations).
• What this does NOT concern: These recommendations DO NOT pertain to Illegal music sharing by students or faculty intellectual property produced for or related to their research.

Initial Recommendations (2011) for consideration of the Information Technology Leadership Council (ITLC) to forward to the UC Office of General Counsel and/or the University Wide Copyright Working Group of OGC

1. Develop a single UC Copyright and Fair Use website, that provides all UC Faculty and Staff:
   1. A unified UC interpretation/definition of “Fair Use”;
   2. Unified policies, procedures and processes for ensuring faculty and staff have what they need to protect the university from misuse and litigation.
   3. A designated single point of contact for faculty and staff who require assistance related to fair use and copyright issues on each campus.
2. Establish standard UC guidelines on ‘fair use’ as it pertains to instruction, which:
   1. Define the level of risk the university is willing to tolerate in the area of potential interpretation by copyright owners and lawyers as copyright infringement;
   2. More clearly stipulate system wide, campus, and individual responsibilities within a unified copyright and fair use service provision that relies on a codified set of standards while allowing for differentiation at the local level.
3. Adopt a standard (online) training curriculum across the UCs to enable students, faculty and staff to lawfully use and store information within our IT systems (both at the campus and system wide level).
   1. Consider for possible inclusion in the “Mandatory Education” initiative defined in the Working Smarter Progress Report: Administrative Efficiency at the University of California (dated January 1, 2011, p. 43).
   2. Periodically revisit the learning objectives of this training curriculum to align with legal developments and new requirements.
   3. Periodically assess the efficacy of this training curriculum.
   4. Make sure the training curriculum and training activities are accessible (ADA).
4. OGC to work with campuses to establish a risk assessment program regarding copyright use for teaching and learning for each campus.
   1. Include IT parameters in this risk assessment
   2. Aggregate reports annually for review by appropriate university entity
   3. Provide a definitive position whether it is legally possible to pass through any liability to the end user via a disclaimer.
5. Establish system wide IT procedures and practices to address conforming use of digital content.
6. Develop shared best practices across the UCs.
7. Review existing copyright support for instruction across the UCs so that we can leverage the good work that is already occurring on some campuses.
8. Generate instructional use case scenarios that can be shared across the UCs (ETLG can help this)

Feedback on Recommendations

Information Technology Leadership Council Response (July 2011)

The ITLC discussed a proposal from the Education Technology Leadership Group (ETLG) to create a single UC Copyright and Fair Use web site (in cooperation with the Office of General Counsel or the Univeritywide Copyright Working Group).  The ITLC agreed to the following: 

The ITLC explicitly approved the creation of such a web site with the following two caveats:

1. The ITLC and/or ETLG can't be the owner or primary driver of this web site.  The ITLC and ETLG can partner and support the functional owner, but the functional owner must agree to take a leadership position before development of the web site can begin.
2. The ITLC endorsed this project with the assumption that the effort involved to create and maintain the site will be relatively minor.  If not, the proposal will be submitted through the formal ITLC project review process.

Pete Siegel (ITLC rep. to the ETLG) agreed to convey the ITLC's endorsement and caveats to the ETLG and report back on findings relating to points one and two above at an upcoming conference call or at the September face-to-face meeting at Santa Cruz.  IN PROGRESS..

UC Office of General Counsel (June 2011)

In an informal conversation with UCOGC, we received the following feedback:
Item 1) Develop a single UC Copyright and Fair Use website and 2) Establish UC guidelines

OGC agreed with the wisdom of consolidating system wide websites but felt that the "unified UC interpretation of Fair Use" would be hard to implement (due to ambiguity inherent in the law itself). Larry had emphasized this in one of our prior ETLG conf calls, as you may remember. OGC also agreed that there is a widely felt need for system-wide training on copyright both for faculty and for support staff who assist faculty in the development and posting of instructional materials.

A (SLASIAC) task force will be formed to revise / update the policy on instructional materials. OGC thought we could incorporate some of the challenges presented in our recommendations into the task force's work... and I offered to be on the task force to help. I'm sure other volunteers would be welcome (Mara has indicated a willingness to be part of this effort).

According to OGC, guidelines have been written to date in such a way as to extend the greatest flexibility possible so that faculty can have some say in their interpretation of fair use. That is, faculty can elect to go beyond what is defined as a "floor" (not a ceiling) in the guidelines in an effort to push the envelope. NB: As "guidelines," they do not have the force of law.

So, as you know, if a faculty member doesn't get specific permission, she is relying on fair use, which differs on a case by case basis. Thus, some aspects of both establishing a common set of standard guidelines will be difficult to define (as Larry predicted) - and this fact impacts one of our other recommendations - Item #4 - "Establish a risk assessment program." It is hard to establish a risk assessment if the thing you are assessing is itself intentionally murky. But, the level of campus resource provision around the support for copyright could be evaluated. The question is: by whom? - we may need to take item 4 to Risk Management folks or rethink it (and possibly incorporate it into program review of our respective departments / divisions?).

Item 4c - Can we pass through liability via an online disclaimer? Answer: OGC didn't think so, asserting that our current DMCA process should cover us: Injured parties notify us via our DMCA officer, we take down the offending material, all is well. IF Georgia State court case works out to our advantage, then this reactive approach may suffice going forward. But if we have to proactively address permissions in instructional content - we are obviously under resourced.

Item 3 - Adopt a common Online Training Curriculum - OGC agreed with this and we spent some time on whether this should be mandatory or not. Most everything up until now has been voluntary - so this would require some political buy in from faculty. I raised the tangentially related case of the need for Accessibility training (making our instructional content and systems accessible).

Item 5 - IT standards and best practices - OGC had no opinion on this. To the extent this is beneficial to us and do-able across the campuses, then that is great.

OGC expressed their thanks to ETLG for our work.

My take away: Instead of a top down mandate from OGC, it looks like our future success will depend on the campuses' ability to align or consolidate "horizontally."  My longstanding position was that since we share common legal liability across all the campuses, this should be centralized.  But, OGC did not feel that just because there is similar legal liability, that standardizing would minimize legal risk. OGC's position is that if we get sued, we get sued "as a campus," affirming that no central (UCOP) entity would step in to share the legal defense burden. So, in that regard, we have individual campus liability - and that, coupled with the reality that this needs to be a horizontal push, does shift the discussion fundamentally.

University Committee on Library and Scholarly Communication (Nov 2011)

UCOLASC provided their feedback via a memo, dated November 10, 2011

Unversity Committe on Educational Policy (October 2011)

UCEP provided their feedback via a memo, dated November 10, 2011