Copyright in an electronic age
Archived article from Dec 1, 2000
By Marianne Gaunt
Digital technology and the Internet, more than almost any other factors, have led to new questions about what we can do with copyrighted materials and what rights should be defined when new intellectual property is created.
At the university, many faculty wear two hats. At times they are creators of intellectual property and seek to protect those rights; at other times they want to be able to use copyrighted materials for education and the creation of new knowledge without legal problems.
According to the law, what may be copyrighted is the expression of original thought fixed in a tangible medium. Copyright law also gives certain exclusive rights to the copyright holder, including the right to copy and distribute the work, make derivative works from it, and perform or display the work in a public forum.
Generally speaking, the law denies those rights to others unless they seek permission from the copyright holder. There are exemptions for libraries and archives and for performance or display in educational settings. The most important exemption, however, is "fair use," which is most frequently invoked by educators who distribute copyrighted materials as classroom handouts or scan copyrighted materials for Web-based instruction.
With the university's full participation in the digital age, it became obvious Rutgers had to take a fresh look at the university's copyright policy. This policy was last updated nearly 15 years ago, before the Internet, distance education courses, Web pages and dot-com companies became a way of life.
Responding to the need for a new policy, University Vice President for Academic Affairs Joseph J. Seneca formed a Committee to Review University Copyright Policy, co-chaired by sociology Professor Bob Wood of the Camden campus and myself.
Last semester, in anticipation of the copyright policy review, the committee began an educational campaign. Kenneth Crews, law professor at Indiana University–Purdue, was brought to campus for a symposium on changes in copyright law and how institutions are reviewing their copyright policies. The symposium was followed by a series of discussions on all campuses, through which the committee received valuable faculty and staff input.
One thing the committee found was that the university community has a very simplistic view of the "fair use" principle of copyright law. Not all educational uses of copyright materials are considered fair use. A claim of fair use must be measured against four factors: the amount of copyrighted materials used; the purpose of the use; the type of material used; and the impact on the sales of the copyrighted material.
When it becomes so easy to put parts of a textbook or several articles on an openly accessible Web site, the potential for infringement escalates. And, within certain guidelines, the university as a service provider may become liable for copyright infringements occurring on its network.
The principle of "works for hire" in the copyright law has also elicited questions. Simply stated, the law ascribes ownership to the creator of the intellectual property except in cases where the work was created on the job, in which the ownership devolves to the employer.
In the past, the university has not asserted rights to published articles or books, but faculty are unsure as to whether the university will pursue rights in the electronic environment for such things as Web pages, course syllabi, or online and distance education courses, and what impact that might have on their work.
The committee also found that many faculty sign publishing contracts without carefully examining them and do not realize that they may have relinquished rights they need, including the right to post their work on their own Web site or distribute their work electronically.
These rights can and should be negotiated with publishers. This is especially important since some contracts may preclude authors from placing their works in an open archive, as is currently being discussed by several disciplines. The university encourages faculty to use technology to enhance instruction and research, so faculty must ensure they have the rights they need to continue to pursue such things as the creation of online courses and Web-based instruction.
Clearly, it is in the best interest of the university to create a policy that encourages the use of new information technologies. The committee expects to have a draft policy for review and university-wide discussion in April. Included in the report to Dr. Seneca will also be recommendations for support structures, so that the community will have access to information they may need concerning the use or the creation of new intellectual property.
University Librarian Marianne Gaunt heads the Rutgers Libraries system. For more information on copyrights, visit the Libraries' Web site at www.libraries.rutgers.edu and click on "Further Copyright Information" at the bottom of any page.
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