Monday, 25 January 2016

Opinion: Fair use, mate

The current client produces publications, webinars, videos and other resources for use by authorised members under a set of Terms and Conditions and mediated by the principles of fair use. Klaxon number one: fair use doesn't have a legislated definition in UK Law, although it does in other territories, certainly the US. So we have an issue here.

What does or doesn't qualify as "fair use" in the case of published materials supplied to a 'customer' or subscriber?

Subscribers (members) get a certain allocation of resources with their subscription, and can pay for additional items over and above their subscription, generally at a member price. We make it clear these resources my be freely distributed within the member organisation but not re-distributed to non-members. Purchases of publications by non-members is normally offered for individual use, and is subject to standard intellectual property rights, copyrights and other terms and conditions.
It gets more complicated when the member organisation happens to be an educational establishment with a body of students who are transient and not 'staff' who are signed up to the terms and conditions of supply.

We are currently preparing a Universities membership offer for which we hope will address some of the licensing and copyright issues arising in academic institutions. Owing to the lack of legislative clarity in the UK, we've defined Fair Use as:
  • making limited print or electronic copies (such as single articles)    
  • using for personal, instructional or research needs    
  • sharing of relevant extracts (part works) with staff and students within your faculty
Whereas Unfair use is:
  • systematic or substantial printing, copying or downloading (such as entire publications, presentations or video recordings)
  • selling or re-distributing content, or providing it to an employer, customer or other external body
  • sharing with people outside your organisation, faculty, staff and students
  • posting actual content or articles to web sites or listservs
  • modifying, altering, or creating derivative works
Which amounts to "don't re-sell, don't plagiarise, credit us when you use our stuff." This is so much more of a problem for content producers in the digital age, where mass-redistribution is enabled by the click of a button. Paper was so much more defensible.

When we find a case of unfair use, we invoke our Take-down Policy, politely request and end to the offending behaviour, issue a Take Down Notice if needed, and threaten legal action as a last resort. Clearly, if it's a paying customer, we don't want to resort to legal action.

The difficulty with educational establishments, you can't legislate for the naivety, stupidity, ignorance or wilful misbehaviour of the student body (and sometimes the teaching staff!), no matter how well you get on with the institution itself.

I noted a standard form of words among educational establishments in the US who have to deal with this issue in the mis-use of teaching materials and resources to which they themselves subscribe:

Conditions of Use and Licensing Restrictions for Electronic Resources
The Library subscribes to thousands of electronic journals, books and other databases for use by authorized users (current faculty, students and staff and on-site visitors). The terms and conditions for using these resources are set out in electronic resource license agreements with each publisher. It is the responsibility of individual users to contact the library if they are unsure if their use of electronic resources may not comply with the terms and conditions specified in the license agreements. Licenses vary from publisher to publisher; however, the general principles are:

  • viewing, downloading, copying, printing and saving a copy of search results
  • viewing, downloading, copying, printing and saving individual articles
  • using e-resources for scholarly, educational or scientific research, teaching, private study and clinical purposes
  • sending a copy of an article to another authorized user (i.e. current faculty, students or staff)
  • posting the URL to the publisher's version of the article on a class website (publisher links will allow only authorized users access)
Not Permitted
  • use of robots or intelligent agents to do systematic, bulk or automatic downloading is not permitted
  • systematic downloading or printing of entire journal issues or volumes, or large portions of other e-resources is not permitted
  • using e-resources for commercial gain is not permitted (i.e. reselling, redistributing or republishing licensed content)
  • transmitting, disseminating or otherwise making online content available to unauthorized users (i.e. sending to mailing lists or electronic bulletin boards) is not permitted
  • posting the publisher's version or PDF of an article to an open class website is not permitted (instead, post the URL to the article which will allow only authorized users access)
As a set of rules of behaviour, I quite like these principles; they cover most of the scenarios we face as a content producer, and should really be embedded in the client's terms of use to subscribers.

What is does for the institutions is legally cover their back against ill-behaving staff and students, in the hope that swift disciplinary action under such a policy will head off any copyright infringement lawsuits by publishers. It also addresses the defence of ignorance by making explicit what fair use is.

I may not like everything about the US legal system, but in this, the US has it right; make it clear, write it down. RC

Image credit: Fairground Carousel by , via, under Creative Commons license.

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