Copyright Digital Repositories
The Modern Institutional Repository vs. United States Copyright Law
Annotations by Charles Ireland
Definition of Project
This bibliography looks at how the modern institutional repository is affected by United States Copyright Law. It will look at what an institutional repository is, what United States Copyright Law is, and how they affect each other. Additional coverage examines works in an institutional repository can be determined to be covered by fair use, the rights of the author and the rights of the repository, and the types of works that are and are not covered by copyright law. The search terms used for the bibliography copyright law, institutional repository, fair use, institutional repository, and copyright law and the institutional repository. Finally, it covers how libraries handle copyright law.
Annotations
Dawson, P. H., & Yang, S. Q. (2016). Institutional repositories, open access and copyright: what are the practices and implications. Science and Technology Libraries, 35(4), 279-294, http://dx.doi.org/10.1080/0194262X.2016.1224994
Academic institutions and libraries that are looking to construct, or use open access repositories are facing a major uphill battle due to copyright laws. Some of the copyright issues that open access repositories face is: authors either need publisher permission or a lapsed embargo period to load their works to the repository, scholars and students do not fully understand copyright laws, little to no policies concerning repository users, and the fact that most repositories do not deal with copyright issues. However, Dawson and Yang have provided some suggestions that will help navigate what could be some very murky waters. To do this they had to define what open access is. Dawson and Yang describe open access as, “the free availability of full-text articles and other materials on the internet” (p. 288). With open access defined, some of the suggestions that institutional repositories can use to navigate copyright issues are: have authors get publisher permission to use their works; find libraries that will help authors with copyright issues to a certain point (taking sole responsibility for content, funds to help with obtaining permissions, etc.); develop nonexclusive, irrevocable world-wide permissions with opt-out or waiver clauses for faculty members; develop addendums to publisher’s agreements with waivers and opt-out clauses; have authors load final versions of their works into the repository before the publication happens; and impose embargos for when publishers require delays before a work can be loaded into an institutional repository. These suggestions can make it easier for either the authors or the repository to load their scholarly works into an open access repository. However; there is one rule of thumb for any open access repository, and that rule is if there in any sort of government information in a repository then it is considered to be an open access repository.
Gasaway, L. (2003). Copyright ownership & the impact on academic libraries. DePaul Journal of Art, Technology & Intellectual Property Law, 13(2), article 2. Retrieved from http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1212&context=jatip
At first glance, it would seem that this article would have very little in common with United States Copyright Law and the Modern Institutional repository. In fact, a person could say that the only common ground is copyright. However, that is not really the case. The information in this article can also be applied to today’s institutional repositories. The reason for this is that Gasaway really describes who has copyright ownership works when it comes to using or obtaining an author’s works. These authors are faculty, employees, and students. Faculty has the most leeway when it comes to copyright ownership. They have copyright ownership of their printed works until their works become published. Then the publisher owns the copyright, and faculty works cannot be used in a library or repository until a period of time has elapsed. The only exception is if there is an agreement between the author and publisher for the works to be put on library and electronic reserve, or the works are being used in the classroom. The only thing that students have copyright ownership over is a graduate or doctoral thesis. Finally, the library or repository has copyright ownership over all employees work because that work is considered to be part of the employee’s job. With all that said, libraries and institutional repositories can successfully comply with U.S. Copyright Law by understanding who has copyright ownership of the written works that are being used.
Graveline, J. (2010). Debunking common misconceptions and myths. College & Undergraduate Libraries, 17(1), 100-105, http://dx.doi.org/10.1080/10691310903584650
Jeffrey Graveline makes a very good point about one of the most feared things in the academic world. This point can be summed up in two words: copyright infringement. Nevertheless, there are quite a few myths and misconceptions on copyrights. One of the biggest myths or misconceptions about copyright is the term fair use. Fair use is, the ability to use a reasonable portion of a copyrighted work without permission. For a work to fall under fair use four questions must be asked. These questions are: is the copyrighted word being used for educational purposes or commercial use, what is the nature of the work, what is the effect on the market or value of the work, and what is the amount and substantiality of the copyrighted work. Fair use does not necessarily cover articles that are being used for educational purposes, nor does it allow a person to post an article to blackboard, or any other medium. Basically, if the answer to any one of these questions that are part of the checklist for fair use no then it is not considered to be fair use. Other areas that are considered to be misconceptions are: I wrote the article so I can load into a repository or web page, and I gave credit to the source so I am not violating copyright. This is not entirely correct because authors generally give publishers the copyright when they have their works published, and giving credit to the author only protects a person from plagiarism. The only way around this is to have an agreement with the publisher that will allow an author to put their works into an institutional repository. Finally, it is not a violation of copyright if there is no copyright symbol. This is something that Congress changed in 1989, so everything that is written by a person is copyright protected with or without the symbol (c enclosed in a circle). Declaring a scholarly article fair use, so it can be loaded into an institutional repository or any other digital storage device is a tricky at best. The questions that determine fair use should be honestly and yes for a work to be considered fair use. If any no answer or anything brings fair use into question then permission needs to be sought after for inclusion into a repository.
Hanlon, A. & Ramirez, M. (2011). Asking for permission: a survey of copyright workflows for institutional repositories. Portal: Libraries and the Academy 11(2), 683-702.
Until recently, authors did not think of using an institutional repository to help them store and use their scholarly works for educational purposes. However, this started to change around in the early 2000s. Institutional repositories started gaining prominence, and by the turn of the century authors were seeing the benefits of storing their scholarly works in their institutions institutional repositories. Nonetheless, there is still a major problem with authors doing this. That problem is copyright infringement because to be published authors usually sign over the copyright of their works to their chosen publisher, and that means that permission must be given by the publisher before the author can submit their works to an institutional repository. This survey discusses how permissions are obtained by the managers of institutional repositories. In most cases, if an author wants to submit a work to a repository they must get publisher permission to do so. Repository managers can help them do this by doing this on the behalf of the author. Another way a repository manager can do this is by using a CCD (Copyright Clearance Directory) like SHERPA and RoMEO. These directories contain most of the publishers that will give permission for authors to submit works to covered repositories. Unfortunately, there are coverage gaps in SHERPA and RoMEO so, managers need another way to help get permissions. This would be accomplished by streamlining a permission letter that is written in a standardized language. This standardized letter would allow repository managers to obtain copyright permission on behalf of their authors. Finally, this standardized letter could make it so institutional repositories can share scholarly works with other institutional repositories just like libraries share books via the interlibrary loan program.
Leary, H., Lundstrom, K., & Martin, P. (2012). Copyright solutions for institutional repositories: a collaboration with subject librarians. Journal of Library Innovation, 3(1), 101-110.
If an academic institution wants to set up an institutional repository at their university or college, this article is the perfect blueprint to follow. Utah State University implemented an institutional repository that worked in conjunction with their academic library. For this to work, they realized that they could not commit copyright infringement. They had to make sure that the proper permissions were granted so that they could enter the scholarly works of their faculty, students, and staff into the repository. Obtaining these permissions is a very time-consuming task that someone needs to accomplish. However; Utah State looked at have the library itself obtain the publisher permission needed, so they could include the scholarly works of their authors. Accomplishing this was fairly easy because their subject librarians took on this task willingly, so the library did not have to try and hire and train more employees or student assistants. By doing this the library’s subject librarians learned how to gain copyright clearance, work with institutional repository software, and a data management system. Once the training was complete, the subject librarians found that obtaining publisher permission only took a few hours out of their day. Finally, there are several benefits to having a subject librarian help with the institutional repository. One benefit is obvious, and that is the fact that the repository gets assistance with a task that is very time consuming. Other benefits are that the subject librarian becomes an advocate for the repository, subject librarians gained a better knowledge of their perspective departments, and collection policies and interaction guides for faculty were developed.
Macklin, L. (2013). The institutional repository: benefits and challenges. Chicago Ill: American Library Association, Association for Library Collections & Technical Services. Retrieved from https://pid.emory.edu/ark:/25593/r9thx
This is a valuable resource to use when talking about how copyright law affects the institutional repository. In the article Lisa Macklin discusses how institutional repositories can ingest the diverse types of scholarly works without committing copyright infringement. The scholarly works that the article covers are: scholarly works that are published in journals, third party content in published works, unpublished works, and re-use of repository works. Macklin goes into detail on how to make sure that each work is copyright compliant. Published works can be copyright compliant by amending journal/author agreements, so the author can self-archive their works; institutional repositories can deposit the work on behalf of the faculty member; use an open access policy grant that can precede the grants made by the author to the publisher; and an opt-out open access policies that gives the faculty members institution a nonexclusive license. Images or photographs are the third-party content that is being used in institutional repositories. The fair use clause pertains to these works because they are being used for educational purposes by art or art history departments. Examples of unpublished works that can be part of a repository are: Electronic Theses and Dissertations or ETDs, PowerPoint presentations, learning objects, and any content that is considered to be grey literature. The authors of these items are the copyright holders, and an agreement between the author and institution is all that is needed to ingest these items into a repository. Unfortunately, there are people that think open access and free access mean free re-use rights. To stop this all the institution should do is have a policy on re-use procedures. Finally, the successful identification and application of copyright policies will help the institutional repository grow and be successful over time.
McCord, A. (2003). Institutional repositories: enhancing teaching, learning, and research. EDUCAUSE Evolving Technologies Committee white paper. Retrieved from https://library.educause.edu/~/media/files/library/2003/1/dec0303-pdf.pdf
Digital repositories are something that libraries and academic institutions are really starting to use to store and disseminate the scholarly works of their faculty, students, and staff. There are quite a few different repositories out there to choose from. Some of these repositories are: a collection based digital repository, student academic portfolios, institutional file storage systems, and a web based storage system. However, the type of repository that is really starting to gain traction is an institutional repository. According to McCord an institutional repository is (2003), “A centrally managed collection of institutionally-generated digital objects designed to be managed in perpetuity”. Institutional repositories are really the best option to store the scholarly works of an institutions authors. The reason is that an institutional repository can provide the integrated systems that are needed for short term and long-term storage. They can also easily be an extension of the institutions academic library. Finally, institutional repositories are a way for faculty and students to get their scholarly works made available to the educational realm. Educating people on institutional repositories is important because of how prominent they are becoming. Explaining this is really the second of two steps in showing how copyright law affects the institutional repository.
Meinderstma, J. (2014). Copyright considerations for institutional repositories [Presentation slides]. Ohio IR Day. Paper 3. Retrieved from http://corescholar.libraries.wright.edu/cgi/viewcontent.cgi?article=1005&context=irday
Jessica Meinderstma is the MLIS Rights Management Specialists for Ohio State University. She has put together a PowerPoint presentation on copyright considerations that any academic institution can use as a blueprint when it comes to inducting any scholarly work into an institutional repository. It asks some of the most basic but fundamental questions about how copyright affects an author’s scholarly works. Some of these questions are: who owns the copyright, does the author have the legal right to deposit a work or is permission needed, what rights does the repository have, what rights does the author have, and how much will the material be used. She also provides examples of what kind or scholarly works are usually included in an institutional repository. Examples of scholarly works are: work that is done by students, staff, and faculty; non-scholarly works; conference proceedings; text, image, and video files; etc. These works will vary depending on the scope and mission of the repository. Finally, it provides people with the answers to the basic questions that were asked earlier. They are: the creator owns the copyright to their work; the author can deposit their works into the repository unless the copyright is owned by a publisher; if permission is needed the author or the repository can request it; the author can have exclusive or nonexclusive rights, and is able to pull the works from the repository; the repository can reproduce, distribute, and format the works; etc. Finally, she discusses third party submission. With third party submissions, the repository needs to have a removal policy, needs to figure out if fair use is an option, and the repository needs to have some sort of licensing agreement for inclusion of work.
United States Copyright Office. (2017). Copyright basics. Retrieved from https://www.copyright.gov/circs/circ01.pdf
When an academic institution decides to set up an institutional repository, it is very helpful if the academic institution has at least a little bit of knowledge in copyright law. This is also true for academic institutions that already have an institutional repository are in place. According to the United States Copyright Office (2017) copyright law is, “a form of protection provided by the laws of the United States to the authors of “original works of authorship” that are fixed in a tangible form of expression” (p. 1). With that said, this circular is good to have on hand because it goes into what an institution needs to know about copyright law. Some of the things that are good to know are: what works are protected, what is not protected, how long a copyright lasts, benefits of the copyright, and who can claim a copyright. However, the two most important questions that this circular answers is what works are protected by copyright and what works are not covered by copyright. The works that are covered by copyright are: literary works; musical works, including the words that are used in the work; dramatic works, including any music used in the work; choreographic works; pictorial, graphic, and sculptures; motion pictures; sound recordings; and architecture. Finally, the works that are not protected by copyright laws are: ideas, procedures, systems, process, etc.; works that are not in tangible form; titles, names, short phrases, and slogans; familiar symbols and designs; listings of ingredients and contents. Being familiar with copyright law will keep the institution form committing copyright infringement, and is the first step of defining how copyright laws affect the institutional repository.
Wu, M. (2015, October). The future of institutional repositories at small academic institutions: analysis and insights. D-Lib Magazine, 21(9/10). Retrieved from http://www.dlib.org/dlib/september15/wu/09wu.html
Larger academic libraries usually have no problem starting, or using institutional repositories. The faculty at these larger institutions of learning are expected to do a little more than just provide instruction to their students. They are also expected to publish scholarly papers. In these larger institutions, institutional repositories are another way for faculty to share their scholarly works in the for educational purposes after permissions are granted. However, things are different when it comes to smaller academic colleges. Institutional repositories face a completely different set of challenges in smaller academic colleges. There are two fairly common challenges that institutional repositories face in smaller institutions. They are that the repository is poorly adapted to the needs of the faculty, and the same problem that all institutions must be careful of copyright laws. Faculty at smaller universities are reluctant to switch from the already productive methods of scholarly communication, dissemination, and validation even though it may not be the best method around. Copyright law is even more relevant at a small university because faculty themselves are responsible for obtaining permission for the work to be used. This is something that they are very hesitant to do because publishing scholarly works is not the primary goal of faculty at smaller institutions. Faculty at smaller institutions are more concerned with promotions, tenure, and academic integrity. Staffing, funding, and a greater emphasis on teaching are two unique problems that institutional repositories are seeing when trying to become established in smaller institutions. With that said, the Roger Williams University (located in Bristol, Rhode Island) has given other smaller institutions some insight on establishing an institutional repository. Some of the strategies that they have used are: a call for submissions from their faculty and student authors to help build the repository, promoting the repositories journal so that authors can publish works into a journal that is open access, having policies and guidelines for the submission process, and forming a state or regional consortia with other libraries to help with financial issues that many smaller institutions experience. Having both these strategies and strategies like these can ensure that the institutional repository not only succeeds, but stays compliant to copyright laws.
