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of California Standing Committee on Copyright
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Introductions 1. Policy on distribution of recordings of course material: comments from formal review Background Material: | ||||||||
Lawrence provided some historical background on the Policy. It was originally drafted four years ago at the inception of the SCC, and was distributed to the campuses and academic senate for informal review along with two other policies in 2001. After substantial critique and revision, the Policy was sent out for formal review in late fall 2004. MacDonald noted that at the time the work on this policy was started, the primary rationale was control of the exploitation of lecture notes by commercial note-taking companies, a problem that also occasioned state legislation (AB 1773, chaptered in September 2000). An important secondary issue was the potential for faculty appropriation of recordings of their course presentations to the detriment of the institution – the “Arthur Miller” situation. While neither problem looms large today, the University still needs the tools to protect against potential misuse of course notes in the future. After examining each section of the current policy with the relevant comments and suggestions received during the formal review, the Committee agreed that Lawrence, in consultation with MacDonald would revise the policy per the Committee's advice, add a provision for ADA-compliance, include in Section C a provision encouraging consideration of the use of works copyrighted by others, and send to the Academic Council for review before being officially adopted as University Policy. | ||||||||
2. US Copyright Office inquiries on Orphan Works Background Material: Lawrence described the comments received by the Copyright Office and the overall agreement of most of the responses with the notion that Orphan Works are an issue that needs to be addressed. Lawrence asked the Committee whether they thought a UC reply comment would be advisable, but the Committee did not believe this would be necessary. Condren observed that the initial comments were dominated by the voices of users of copyrighted works and slighted the views of authors, a point that Lawrence said he would attempt to convey to his contacts among the national associations. | ||||||||
6. File sharing issues Hafner told the Committee that there is much interest in Washington in illegal file sharing, and that both the House and Senate now have judiciary subcommittees on intellectual property. Both of the subcommittees have strong California representation, with Feinstein in the Senate and Berman (LA) in the House. The Family Entertainment and Copyright Act of 2005 passed earlier this year, and there has been new proposed legislation. In addition, the Supreme Court is hearing the case of MGM vs. Grokster, which seeks to make file sharing software makers liable when their products are used for infringing activity. In campus news, the MPAA and RIAA have been sending letters to Chancellors regarding illegal file sharing on Internet 2, the private, higher education network used on the campuses. Internet 2 was created as an alternate path to the commercial Internet to provide high-speed network access to research universities. Entertainment companies are concerned about file sharing on I2 because the monitoring technologies they employ are not able to access I2, which has large bandwidth available to member organizations. Companies are also concerned about campus internal networks (intranets) because music and movies can be shared among students in an environment that is also undetectable to movie and music providers. Therefore students who receive "take-down" notices for infringing behavior could lose their internet privileges but still have access to the campus network to share files internally. Hafner says that Internet 2 is growing increasingly concerned about the amount of bandwidth consumed by what appears to be music and movie file sharing via programs such as I2hub. A workgroup including I2 member organizations and studios is working to try to better understand the problem. After conducting an RFP, UC has selected four music and movie service providers. This will provide options for campuses, residence halls, and individuals to pay for the services. Other schools have taken similar actions to select preferred or in some cases exclusive providers. One issue that may need to be addressed, however, is bandwidth and use of campus networks for entertainment purposes. Some Universities keep caches of the most popular downloads to help with the network traffic. In response to a question, Hafner noted that DMCA “take-down” notices seem to be cyclical, timed to the academic calendar, and that some campuses receive many and some receive none. She said they are seeing more movie-related and fewer music notices. | ||||||||
3. Academic Council Standing Committee on Scholarly Communication – work to date and future plans related to copyright Pitts reported that the SCSC is still looking for a law school faculty member contribute to its plans to prepare a “UC statement” for faculty that encourages faculty to manage their copyrights and publication agreements in ways that allow the greatest flexibility for the use and dissemination of UC-generated scholarship . The SCSC agreed that a statement crafted by the faculty would be more credible and readily accepted than one prepared by an administrative office or committee. Pitts commented that such a faculty-based statement needs eventually to fit into an overall UC copyright and scholarly communication policy and service environment. Pitts mentioned that Lawrence Lessig, Professor of Law at Stanford University and Chairman of the Board of Directors of Creative Commons ( www.creativecommons.org ), might be willing to help the faculty develop language for the UC statement. Pitts hopes to have something in four to five months, and to be finished with this and a number of other SCSC recommendations addressing various scholarly communication issues before the end of the year. Pitts also provided a brief update on a proposal developed by the SCSC and endorsed by Academic Council that would make all publications resulting from research sponsored by the California Institute for Regenerative Medicine (the stem cell initiative) open access. Under the proposed policy, which is modeled to some extent on the NIH open access policy, authors would retain appropriate and sufficient copyrights to meet the policy's proposed requirement to deposit their articles in an open access repository where they would become publicly accessible within six months of publication in a journal. Pitts noted that there were early indications that the CIRM Independent Citizens Oversight Committee (ICOC) would be receptive to this proposal, which now awaits only final approval and transmittal by the UC administration. The main concern is whether junior faculty members would be adversely affected by not being able to publish their results in the best journals, which may not be willing to let copyright remain with the author. Committee members acknowledged that this is also an issue for CAPs and is being discussed on campuses. Evaluation varies by field, with some more “format-agnostic” than others. Lawrence expanded a bit on Pitts' remark about Lawrence Lessig's potential contribution. Creative Commons is a mechanism that allows authors and publishers simply and effectively to reserve certain specific rights while allowing others to make specified uses of works without obtaining the copyright owner's permission. Creative Commons licenses work well if publishers adopt them, or for material that is self-published by authors, but has no particular effect if faculty authors sign over their rights to publishers in a publication agreement. Lessig has agreed to work with UC to develop a Creative Commons standard publication addendum that would allow faculty to retain the rights they need to make appropriate academic use of their works. Compared with developing a “UC addendum,” this approach has the advantages of a) the substantial credibility of CC and the contributions of the widely recognized legal scholars who established and continue to lead it, b) the considerable technical infrastructure of the CC, which allows the addendum to be “attached” to manuscripts and publications and allows any reader to see an online version of its terms, and c) applicability and potentially fast adoption outside the UC community. Lessing is working on this now, and we expect to have something for discussion within a few weeks. SCC members raised a question about the desirability of a UC infrastructure to manage and disseminate their scholarship as a complement to a stem cell policy requirement or the NIH mandate for deposit of NIH-funded research results in the PubMed Central database. Office of Scholarly Communication co-director Ober briefly summarized the extant UC eScholarship Repository and its recent successful postprint service offering to all UC faculty. | ||||||||
5. Electronic posting of copyrighted material – e-reserves and Web sites Background Material: MacDonald informed the Committee about a series of exchanges between the University and the American Association of Publishers (AAP) that challenged the UCSD library's use of electronic reserves. It is unclear whether the AAP will ultimately file a lawsuit against the University or will simply use the available information as a springboard to heighten concerns about the legal issues around electronic reserves and possibly create a chilling effect. The General Counsel's office has described for the AAP the procedures used by UCSD's library staff to ensure that proposed reserves meet “fair use” standards, and has cautioned against bringing a lawsuit against a university whose faculty provide prodigious amounts of material for the publishers that the organization represents. National press coverage includes articles in the Wall Street Journal, the Chronicle of Higher Education, and the Library Journal. George Blumenthal agreed that the next Senate Source newsletter would contain an article informing the faculty at large about the situation. | ||||||||
4. Policies on the use of copyrighted material Background Material: The first question raised by MacDonald in discussing the proposed revision of the former Policy and Guidelines on the Use (formerly “Reproduction”) of Copyrighted Materials for Teaching and Research was whether to include other uses, such as electronic reserves, within the scope of the policy. Questions also arose about the guidelines, and how to couch those in the appropriate way. Lawrence reminded the Committee that the consensus at the last meeting was to keep the guidelines as a safe harbor that the University might use in defense of copyright infringement claims. The Committee debated the merits of providing quantifiable guidelines for fair use. MacDonald proposed, and the committee endorsed, the strategy that the policy itself would be brief and encompass all use of copyrighted works, including electronic reserves, while the guidelines would be specifically limited to photocopying for classroom use and be incorporated into the UC Copyright Web Site (with links from the Policy and with references to the source documents), where they could be joined by other guidelines (e.g., e-reserves, course Web pages) if and as they are developed. MacDonald will prepare a revised draft of the proposed Policy; Lawrence, in consultation with MacDonald, will prepare the necessary materials for the UC Copyright site. |