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The Death of Fair Use: Or A Few Reasons Why We Are Paying More and Getting Less Linda S. Dobb Bowling Green State University Bgsulib@wcnet.org The Facts (Not That They Bear Repeating)
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Linda S. Dobb
Bowling Green State University
Fear: that as information becomes available electronically subscription lists will sink
More legal fees; lobbying
Some upgrading of technology
Unaccounted for: new experiments by both publishers and academic organizations
Money, time, skill spent fighting restrictive legislation
Funds spent on understanding/negot. Licenses
Licenses, legislation, law suits, legalize not…What Contributes to These Stats?
Less information is available
Digital divide and research divide
Institutional authors cede their copyrights to publishers their own institutions cannot afford to access
More time spent on licensing issues
More time spent on trying to understand what drives out faculty
More time spent on trying to understand copyright issues and to control costs (at all costs)Impact on Libraries/The Public
Purpose and character of the use
Nature of the copyrighted work (fiction/non-fiction)
Amount and substantiality of the portion used
Impact on the potential market value of the copyrighted workWhat Was Fair Use?
Best guide to the above: Licensing Digital Content: A Practical Guide for Librarians by L.E. Harris (ALA)
Preamble, parties, definition, contents to be covered, rights, sublicenses, interlibrary loan, fair use, e-rights, usage, usage restrictions, license fee, licensor obligations, delivery and continuing access, support and documentation, licensee obligations, monitoring use, moral rights, credits, etc.What Has Supplanted Fair Use in the Digital Environment
What really to look for: ease of access; one stop transactions (no add. Permissions or payments); clear definitions of what is permitted; access beyond termination of the agreement; liability regarding the use of the content (Harris, p. 6)
Other: confidentiality, authentication, BUDGET, downtime, archiving, choice of lawMore on Licenses
Digital Millennium Copyright Act: creates “significant remedies against unauthorized circumvention of the protection measures that are used to control access.”
UCITA: Uniform Computer Information Transactions act: so far only in Maryland and Virginia. Purpose “to regulate transactions in intangible goods such as computer software, online databases and other information products in digital form.”Legislation
TEACH: a bright spot; provides for the transmission of information (a/v, dramatic works and sound recordings) in support of distance education
Problems: still need to fight UCITA wherever it crops up under various guises
Brokering in Congress may cause legislators to only pass TEACH if Database Protection Legislation is passedLegislation
Impacts material written between 1976-1995
What has happened? Articles have disappeared from databases
Case has been applied to photographs
Example: NYT has pulled over 100,000 articles from databases; 15,000 have been restored
Some authors worry about impact on ILL and in other areas
Eldred (Bono revisited)Legal Cases Impacting Use/Reuse
Some scientists starting to stand up and protest
Will a contest ensue over evaluations of scientific information
Will lesser quality research be publishes
Open Archives Initiatives; Open Citation Project; Free Online Scholarship
Use and reuse of information constantly questioned in every venue: reserves, distance learning, classrooms, dormitories
Libraries being called upon as experts in regards to publishing, producing knowledge, contracts, etc.Other Impacts
Write your legislators as issues arise
Be vigilant but not over prescriptive
Inform faculty of the factors contributing to steep price increases
Be aware of other trends that are impacting information: government policies on publishing
Patents and commercialization of research at your own institutions
Pressure to publish in certain prescribed lists of journals
Demands by faculty to have ownership in courses produced with university funds and with multiple contributors, including librarians.What Can You Do?
ARL Bimonthly Report
Crews, K. Copyright Essentials for Librarians and Educators, ALA 2000.
Harris, L.E. Licensing Digital Content, ALA 2002
Bollier, David. Silent Theft, Routledge, 2002, pp. 119-146
Litman, Jessica. Digital Copyright, Prometheus, 2001.
Draft principles for the networked worldSome Resources