University of California Standing Committee on Copyright
February 4, 2004, 10 a.m - 3 p.m.
University Club
University of California, Irvine

MEETING NOTES

1. Introductions, Review of Meeting Objectives

2. Copyright policies
a. Policy on Distribution of Recording of Course Presentations: OGC concerns (Discussion/Action)
Background Materials:
· Policy on Distribution of Recordings of Course Presentations (DRAFT for formal review, 5/1/03)
· Policy on Recordings of Courses and Other Instructional Presentations ("MacDonald draft")(Draft, 4/21/03)
· University of California Standing Committee on Copyright, April 29, 2003, Noon – 4 p.m., Meeting Notes (Extract)

MacDonald noted that work on this policy had its inception with the passage of California Assembly Member Romero’s AB 1773 in 2000 (California Education Code, §66450-66452), which attempted to address concerns about abuses by the lecture notes industry. Campuses have frequently sought assistance from the Office of General Counsel regarding means to control abuses of the classroom by companies producing and selling course notes, and OGC has found that there is no Universitywide policy or regulation applicable to this situation (although there are sometimes campus regulations that may apply). OGC feels that the proposed policy, which controls distribution of course recordings, may not prove sufficient to cover some situations where a “distribution” is not involved, and believes it would be useful to have a policy that in addition controls the act of creating a record.

After extensive discussion, the sense of the Committee was that:

• Expanding the policy to include control over creation of records could be impractical, would likely raise faculty concerns about academic freedom and administrative intrusion into the classroom, and would surely require extensive consultation with the Senate
• Abuses of a kind not addressed by the policy on distribution appear not to be frequent or pressing
• The current draft policy, which has received informal review by campuses and the faculty, is needed immediately to help campuses with the frequently-occurring problem of controlling commercial exploitation of lecture notes

In view of these considerations, the consensus of the Committee was to make minor changes in the wording and move it forward to formal Universitywide review.

b. Policies on Use of Copyrighted Material: initial review (Discussion/Action)
Background Materials:
· 1986 Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research (http://www.ucop.edu/ucophome/coordrev/policy/4-29-86.html)
· 1985 Policy for Off-Air Recording of Broadcast Programming for Educational Purposes (http://www.ucop.edu/ucophome/coordrev/policy/9-24-85.html)
· UC Policies on the Use of Copyrighted Works: Issues for Consideration by the Standing Committee on Copyright (October 30, 2003)

In discussion, the Committee observed that:

• The two existing policies and guidelines are badly outdated, and must be brought into conformance with current law.
• Stripped of their accompanying guidelines, the thrust of existing policies is that the University and its community should comply with copyright law; it is not evident that an official policy statement to this effect is needed.
• The accompanying guidelines provide interpretation of the law and useful guidance as to its application. There is considerable need for such guidance, and the University’s 1986 “Guidelines for the Reproduction of Copyrighted Materials for Teaching and Research,” incorporated into the 1986 Policy, particularly deserve to be retained in some fashion, because they represent a considered University position that goes beyond the “safe harbor” provisions provided in contemporaneous national guidelines. However, guidelines of this kind are more appropriate as essential components of copyright information and education, not University policy.
• To the extent that policy is needed in this area, it should set out principles, not detailed regulations. There is some interest on the part of committee members in adoption of principles that express the University’s commitment to and compliance with copyright law and, in particular, the doctrine of fair use. However, it is not yet evident to the committee that new policy is required or desirable.

In view of these observations, the Committee adopted the following action plan:

• Staff will provide a paragraph-by-paragraph analysis of the two policies/guidelines in comparison with the current content of the UC Copyright Web site (http://www.universityofcalifornia.edu/copyright/), to identify gaps in the Web site’s coverage in areas addressed by the policies.
• At its May 6 meeting, the Committee will review this analysis, identify needed enhancements to the Web site, and determine the need for and direction of revised or replacement policy.

3. File Sharing Update (Discussion)
Background Materials:

• Letter, Assistant Vice President Arditti to Assembly Member Cohn, September 17, 2003
• Letter, Senior Vice Presidents King and Mullinix to Chancellors (7/24/03) (http://www.ucop.edu/irc/policy/dmcachancellor.html)
• Letter, Vice Provost Zelmanowitz and Senior Vice President Mullinix to Campus Administrators (8/12/03) (http://www.ucop.edu/irc/policy/dmcacio.html)
• LionShare: An Academic P2P Community (Pennsylvania State University, May 2002) (http://p2p.libraries.psu.edu/lionshare_overview.pdf)
• Simpson Garfinkle, “Pushing Peer-to-Peer,” Technology Review, October 2003 (http://www.technologyreview.com/articles/wo_garfinkel100303.asp)
• Joint Committee of the Higher Education and Entertainment Communities Technology Task Force (http://www.educause.edu/issues/rfi/)
  

Hafner reported that the University is under persistent pressure from the California Legislature (particularly from the Assembly Committee on Arts, Entertainment, Sports, Tourism, and Internet Media and its current member and former Chair, Assembly Member Rebecca Cohn, D-Campbell) to address infringing filesharing. Responding to the Assembly Committee’s concerns that UC does not adequately communicate to students about the importance of compliance with copyright law, Hafner’s staff have discovered that UC does a great deal in this area (see Arditti to Cohn 9/17/03), and the UCOP offices of Strategic Communication and Student Academic Services are working together to involve students in the development of further messages and communication strategies. Hafner also reported that, in the experience of the campuses, once students are warned that their behavior may be infringing (e.g., through a DMCA takedown notice), they rarely infringe again, suggesting that it will be most effective to focus on incoming students. UC is currently focusing on procedures to shorten and simplify the DMCA notice-takedown process (UCLA has taken the lead here). To promote greater mutual understanding and deter Legislative interest in draconian measures (such as mandatory automated peer-to-peer blocking systems) UC will continue to engage in constructive discussions with the Legislature and the entertainment industries on this topic, in parallel with the national dialog centered on the Joint Committee of the Higher Education and Entertainment Communities.

4. Scholarly Communication (Information/Discussion)
Background Materials:

• Reshaping Scholarly Communication Web site (http://libraries.universityofcalifornia.edu/scholarly/)
• Fall 2003 faculty seminars on scholarly communication (http://libraries.universityofcalifornia.edu/scholarly/fall_03_facultyforums.html)
• Academic Council Special Committee on Scholarly Communication (see http://www.universityofcalifornia.edu/senate/news/source/source2_2.pdf)
• Publisher negotiations (http://libraries.universityofcalifornia.edu/news/negotiations.html)

Lawrence noted that focused activity in this area was triggered by the May 2002 joint meeting of this Committee with the Systemwide Library and Scholarly Information Advisory Committee (SLASIAC), which was devoted to issues in journal pricing and scholarly communication (see the meeting notes at http://www.slp.ucop.edu/consultation/slasiac/notes_052302.html). Pursuant to the recommendations emanating from that meeting, Systemwide Library Planning and the Academic Council sponsored two regional faculty forums (10/31 and 11/7). At about the same time, there was widespread interest in the outcome of the California Digital Library’s negotiations with Elsevier Science Publishers, which were conducted in close consultation with the faculty. As a result of these events, we see a heightened awareness of scholarly publishing and communication issues among the UC community, and a broad consensus on the unsustainability of the current system. SLP/CDL, the Academic Council, and the UC Libraries are taking or planning a number of actions to capitalize on the current level of interest and more aggressively address these issues, including:

• Establishment of the UC Libraries Web site on “Reshaping Scholarly Communication”
• Establishment of the Academic Council Special Committee on Scholarly Communication
• Planning for library-based initiatives in the general areas of:
  • Developing and disseminating information, research and analysis
  • Increasing organization capacity (UC Press, eScholarship, library collection development practices)
  • Communication
  • Building and supporting communities of interest

In discussion, Borgman raised the issue of the licenses offered by the Creative Commons (http://creativecommons.org/), which offers a set of pro forma licenses that are intended to help people dedicate their creative works to the public domain — or retain their copyright while licensing them as free for certain uses, on certain conditions. Borgman believes that Creative Commons licensing is consistent with the University’s goal to foster sharing of knowledge and provides an antidote to a legal environment that is increasingly antithetical to fair use. Borgman suggested, and Matkin and Rose endorsed, the idea that UC’s eScholarship program (http://escholarship.cdlib.org/) should facilitate and encourage the use of Creative Commons licenses in the publications it makes available and the works deposited in the eScholarship Repository by UC faculty, and recommended that Dan Greenstein, UC University Librarian for Systemwide Library Planning and Scholarly Information, be invited to the May meeting to discuss these issues with the Committee.

5. Copyright law and legislation - issues in the 108th Congress (Information/Discussion)

Kamala Lyon, Legislative Analyst in the UC Office of Federal Government Relations, provided an overview of the current outlook for copyright-related issues in the second session of the 108th Congress, and distributed a packet of materials. Issues discussed included anti-piracy legislation, database protection legislation, peer-to-peer file sharing, DMCA, and sovereign immunity.

6. Next steps/next meeting

The next meeting of the Committee is scheduled for Thursday, May 6, 2004, in Oakland. In addition to addressing next steps in the review of policies on use of copyrighted material in teaching and research, the Committee is interested in discussing fair use issues and Creative Commons licensing.