The Growth of Copyright

Copyright issues at universities have become increasingly complex and pervasive as faculty members, librarians, students, and others steadily create and use copyrighted works in furtherance of their teaching and research goals. 

The legal questions of copyright issues at universities are diverse, and regularly demand an analysis that melds the law with a formidable understanding of the institutional mission.

Faculty members need to work with copyright exceptions for education and “fair use” as they select materials for classroom instruction, identify orphan works, and build exten-sive databases for research and text mining.  Libraries rely on copyright analyses as they establish reserve operations and engage in “mass digitization” to build online digital collections.  Exactly how the university approaches these situations tells much about the law and about the academic mission.

Need to Address Copyright Escalated

The need to address copyright has escalated as the projects become more expansive and more public.  Faculty members create new copyrighted works as they launch websites and prepare research studies for public dissemination.  Scholarly presses are adopting Creative Commons licensing, and faculties at leading universities are adopting resolutions calling for Open Access of their scholarly articles.

University administrators often initiate new copyright policymaking to help guide distance learning and the development of MOOCs that reach many thousands of students online.  Libraries are often formulating standards for scanning and uploading copyrighted materials into course management systems for all students.

That any large and complex organization should have growing legal needs is hardly a surprise.  Universities are different, however, because the changing relationship to the copyright environment is driving some institutions to take a centralized approach on matters that traditionally have been deferred to individuals.

The risks, opportunities, and responsibilities associated with copyright are leading many universities to move some decision making about teaching and research from the private offices of faculty members to a central office assigned to guide the campus community.

University Copyright Officers

Unlike the handling of other legal matters, copyright is often not merely assigned to university legal counsel. A notable trend in the United States has been the gradually but steady emergence of professional copyright positions, and sometimes formal offices, and with the primary responsibility to address copyright issues in connection with teaching, research, and library services – and with a sensitivity to academic freedom and the advancement of knowledge.

The growing importance of copyright in education and research, has escalated the demand not only for more copyright guidance, but also for more nuanced understandings of the implication of copyright decisions for the central research and teaching mission of the institution.  A new profession of the university “copyright officer” has taken root. The demand is for experts who comprehend the law and appreciate university culture.

Copyright Priorities

Although only about thirty full-time copyright-related positions exist at the 100-plus leading research universities in the United States, that small number reflects the diverse views about the role and priorities of the office.

Some offices are strictly local and exist to give immediate legal consultations for campus needs.  Other offices are charged with a more activist role, from teaching faculty about copyright to advocating for legal change in Congress and internationally.

No one office can do it all, but a clear mission and organizational priorities can be revealing. That said, the priorities for an office usually embrace a selection from these activities:

o Institutional Policy Development on fair use, open access, publication agreements, and other issues.

o Copyright Education for faculty and others.

o Development of Information Resources, such as a website and other original materials.

o Negotiating and Drafting Agreements and Licenses, notably for the acquisition of databases and library resources.

o Individual Copyright Transactions and Queries, arriving daily by phone, email, and in person.

o National and International Advocacy on copyright developments in legislatures, courts, and other governmental agencies.

o Original Research and Conference Presentations, sharing copyright knowledge and insights at meetings and through publications.

o Professional Leadership in regional, national, and international associations and events.

Officers with Multiple Skills

Each office has a characteristic balance of priorities.  The needs and expectations of each university are distinct, and the talents and proclivities of each copyright officer are often personal.  Priorities also shift rapidly.  New programs and initiatives on campus, and new changes in the law, can scuttle expectations and demand rearrangement of careful plans.

The copyright officer therefore must have more than insight and knowledge, the officer must bring organizational skills, diplomatic charm, and personal nimbleness to the job.  Nevertheless, clearly articulated priorities can tell much about the universities understanding of copyright’s role in campus life.

Is it a legal mandate for compliance, or is it part of the academic ecosystem?  Does the copyright officer simply answer questions or guide the community through copyright obstacles that are intrinsically tied to academia?  Without question, the successful copyright officer must negotiate and interpret copyright in a manner that optimally serves the overall process of research, publication, access, and the growth of scholarship.

Choices for the Future

Universities have choices about the establishment and structure of a copyright position, and they have choices about how they will comprehend and formulate policy on copyright issues.  Those choices can help define when and how the copyright officer will use his or her valued expertise and limited resources.  The choices will also demonstrate the institution’s vision of how copyright will find its place in the scholarly enterprise.

If the interpretations of fair use and copyright exceptions are narrow or rigid, educational opportunities may be lost.  If the interpretations are unduly broad or unsettled, the copyright policy may be undercut by legal challenges or simply confusion.  If the institution takes a strong position on owning online courses or mandating open access, the policy can interfere with academic freedom and risk discouraging creativity.

On the other hand, if the university defers all responsibility to individuals, the thousands of faculty members and others at a university may make hasty and uninformed decisions.  The role of the university copyright office is profound, and the decisions about whether and how to proceed with each copyright issue can set the tone for the university’s responsibility to the law and its fulfillment of the scholarly mission.

Kenneth D. Crews
Gipson Hoffman & Pancione,
Los Angeles, US.

Kenneth Crews has served on the law faculties of Columbia University and Indiana University. At Indiana he founded and directed the first copyright office at any university.  He continues on the faculties of Columbia Law School and the Munich Intellectual Property Law Center.  He has been a guest lecturer at Aalto University and Hanken School of Economics.