AARL

From faith to certainty: the changing face of managing copyright compliance in an Australian University

Michael Lean and Carolyn Young

Abstract: This paper describes how copyright compliance is managed in a large Australian university, with consideration of both the role the university library plays and also how copyright matters external to the library are managed. The paper looks at the changes in distribution technology and copyright legislation over the last decade, and examines the changes in the university's ability to disseminate teaching materials, as well as the changes in the requirements for managing the use of copyright material.

This paper looks at the major issues for copyright compliance are managed across a university and considers how a university library, as an integral and contributing part of the university, needs to be involved in this management.

ibraries within educational institutions hold substantial collections of copyright material in the form of books, journals and audiovisual items, amongst other works. Increasingly, libraries provide electronic access to information resources available via the internet, such as online database or full text services and other media formats. Proper observance of the licence conditions means that the library must remind users of their responsibility to respect the intellectual property in the works available, and ensure that any use of the works will be within the limits and purposes allowed under the Copyright Act. Libraries also have a responsibility to ensure that their own dealings with works in their collection or those accessible via their networks, are legitimate and permitted by the Act or relevant licence agreements.

For better or worse, university libraries have traditionally had copyright lodged in their bailiwick. As more and more resources become subject to licensing arrangements, and whilst libraries remain the seat of the majority of fair dealing and other copying, there is every reason to believe that the marriage of copyright administration and libraries has a strong future.

On 4 March 2001, the Copyright Amendment (Digital Agenda) Bill passed into Australian Commonwealth Law, thus ending a long period of uncertainty, heavily tinged with frustration, for Australian universities. The law now clearly allows, subject to various conditions, the provision of readings in digital form and online for students. Whilst an agreement had been reached with the Copyright Agency Limited (CAL) in 2000 which enabled universities to begin the process of digitisation few universities had moved to take advantage of it, and it was the Digital Agenda amendments which gave certainty and stability to the situation.

Prior to 2000 and the CAL agreement of that year, Australian universities, although possessed of the ability and desire to deliver course materials online by the use of the world wide web, were nevertheless unable to make use of the technology to provide anything other than material for which they either a) held the copyright, b) had obtained the permission of the copyright owners, or c) was in the public domain. Typical instructions for the period, advising faculties to exercise caution in making material available online, can be seen in the QUT Copyright Guide, at http://www.dias.qut.edu.au/copyright/crguideinternet.html.

This situation was in direct contrast to the print or hard copy world, where the universities have for over ten years held a licence with the declared collecting society, the Copyright Agency Limited and have long been able to make multiple photocopies of monograph portions and journal articles for their teaching purposes, secure in the certainty that they were complying with the law.

The inability to move to the online world was caused by a number of factors, partly a general uncertainty as to what the Australian Copyright Act permitted in the way of digitisation and communication via the world wide web or the internet, but even more by the seeming impossibility of reaching agreement on the issue between the Australian Vice-Chancellors' Committee (AVCC) which has traditionally conducted negotiations on behalf of Australia's 37 universities, and CAL. Although both sides generally believed that online activity could be licensed, the main sticking point seemed to be CAL's belief that such activity should command a much higher rate than photocopying, with suggested rates entering into realms that were entirely beyond the reach of the universities. (At one point in the negotiations, CAL suggested figures of $200 per document uploaded to a website and $5 per hit on that document.) And so, unable to reach agreement, the matter was held in abeyance until such time as the Government completed its deliberations and drafting, and clarified the situation through legislation.

The Copyright Amendment (Digital Agenda) Bill which became law on 4 March 2001 gave a high degree of certainty to universities (and, indeed, other educational institutions) as to what they could make available online, but the requirements needed to comply with the law were complex, and somewhat difficult to apply in a distributed environment such as is to be found in the post-Dawkins multi-campus university. The amendments to the Act created, inter alia, a new right for copyright owners, the right of making available to the public.

The new legislation clarified for everyone the actual parameters of online activity, and brought an understanding of how the Statutory Licence administered by CAL, and expanded in 2000, would allow universities to make available online for educational purposes extracts from monographs, journal articles, music and complete works which came under the heading of artistic works such as maps, photographs, diagrams, paintings, graphs and drawings. The result has been the rapid development of e-reserves replacing print Course Reserves in university libraries across the country. However, conditions applied, and they were not only complex but numerous, and required careful administration. A description of these conditions and advice to QUT academics on compliance can be found at http://www.dias.qut.edu.au/copyright/CMDcompliance.html.

This was the final chapter in a decade of changes in which the universities were able to move from faith to certainty in their dealings with copyright material, a decade which saw the advent of the CAL photocopying licence, the expanded CAL licence which included digitisation, the Screenrights (formerly AVCS) licence for off-air copying and finally the signing a few weeks ago of the Electronic Use Agreement with CAL, which gives them budgetary certainty for the next five years, and clearly sets out how monitoring for royalty distribution will be conducted. In this context, however, there is no room for 'certainty' to be equated with complacency.

Multiple copying of print and subsequent digitisation of reasonable portions of copyright works made under the CAL licence are only a part of the story of copyright administration in universities. The past decade has been one of enormous change in scholarly publishing. Publishers first began to make abstracting and indexing services, and later full text journals, available on databases. Each database had its own licence conditions, and acceptance of these removed the licensee from under the umbrella of copyright law. As university libraries move from print to digital, they experience corresponding changes in copyright emphasis from copying print under statute or the CAL licence to a focus on access and copying under individual licence agreements with each database vendor.

A little more than ten years ago, copyright management in universities was done by faith - under some hopeful and uncertain interpretations of the statute; it was an article of faith that whatever was done was permissible if it were done for educational purposes, and no profit was being made. And before the advent of the photocopier, copyright owners had little to worry about. With photocopying on the increase, and then computers, university copying became a serious concern, thus leading to the creation and introduction of the various licenses referred to above. University use of copyright material in the web environment has become a mixture of access issues as well as the simple copying of the past. Because the transition to web access has been so rapid, publishers have taken some time to begin to standardise on models of access and use of their copyright material. This has meant universities are dealing with great complexity in managing their use of copyright materials with some managed under a wide range of licences, some under statute and some by gratis permission. It is only in the last few years that this University has begun to reach some certainty in the management of its many arrangements for access and copyright on behalf of its students and staff.

Universities are both producers and consumers of intellectual property. Our researchers produce many works, ranging from theses, academic papers and journal articles to inventions which attract patent protection; teachers devise and produce courses and teaching materials in a variety of formats; graphic artists and photographers create artistic works and various other entities within the institution create works in the audiovisual and digital fields. Many of these people are consumers also; they use and copy the works of others in the course of their research, administration or teaching and few of these activities fall under the fair dealing provisions of the act, but must be covered by one of the licenses. The library of a university is responsible for large amounts of copying activity, some as fair dealing, but increasingly under various licenses.

Compliance with legislation and licences

The University has had to establish a range of copyright management systems to ensure it is compliant with the complex range of licences, statutory requirements and rights. The University's Copyright Officer has the overview of these systems, while the setting up and management of the systems is under the control of other parts of the university - mostly the library. Over the past decade, the library has taken an increasing role in copyright management. Its role has grown from a primary concern with copying for interlibrary loans, external students and preservation to a role which has broadened to include access as well as copying for e-reserve, licences for numerous electronic databases and the Australian Digital Theses Project (ADT). Some university libraries like Monash are extending their role to become a digitisation centre for the university.

With these new roles come new responsibilities for the library staff. The most unwelcome one is that of 'copyright police'. We've come a long way from refusing the occasional interlibrary loan request because the requestor wanted too many articles from the same journal. Today, library staff are ensuring that database licence provisions are respected and that only university staff and students can access databases. They establish e-reserve systems that limit user access to the specified 'reasonable portion' of a book or journal at any one time. They ensure that like photocopiers, all public machines in the library capable of making a copy, ie computers, printers and video recorders, bear a notice warning users of their copyright obligations. Library staff can find themselves in a conflict situation. Their service ethic is to support and meet client needs while their obligations under the database and statutory licences cause them to refuse to meet certain client demands. Lecturers find it hard to understand why they can't make all the articles and book chapters they want available on e-reserve at the same time. When different lecturers want chapters from the same book placed on e-reserve, library staff find themselves in the role of negotiators between lecturers to timetable the chapters' availability. When heads of school or deans want to woo or reward their industry contacts such as supervisors of field work students and industry research partners, they ask the library to give these people access to the library. These days, it's access to the databases they really want to offer, rather than merely access to the collections. As most licences restrict database access to the university's staff and students, library staff may have to refuse such requests from heads of schools.

The course materials database

Soon after the CAL Agreement on digitisation had been signed in March 2000, QUT designed and later established its centralised e-reserve system called the Course Materials Database (CMD) to manage the digitisation of copyright materials. The CMD was launched in June 2001. One of the stipulations of the CAL Agreement is that only one 'reasonable portion' (generally 10% or one chapter of a monograph, whichever is the greater, and one article from any one issue of a journal) of a work can be made available at any one time. This can only be achieved through the establishment of a centralised database. QUT policy is that the CMD is the only way that teaching staff can make digitised copyright material available; to use other avenues is in breach of QUT rules. (The copyright officer makes random checks of faculty servers to ensure that no copyright materials are there.) On the CMD, full bibliographic details are recorded for each digitised document on the database and on the cover sheet which bears the regulation copyright statement:

Documents are only accessible to students on the live CMD database for the time period specified by their lecturer. After this time, the documents are archived onto the CMD master database. When a lecturer completes a web form CMD request, the library staff check the CMD database to see if the document is already digitised, or if there is already another portion of the same book on the live database. Journal articles do not present the same problem as different lecturers may request items from the same journal issue. However, an individual lecturer cannot request more than one article from a single issue of a journal unless those requested are on the 'same subject'. Staff also check that the document requested complies with the quantity restrictions of the Copyright Act. If there are problems, the staff advise the lecturer and arrange to mount a portion of the work that complies with the guidelines

In the print multiple-copying regime, the individual lecturers were limited to copying a 'reasonable portion' for their students in coursepacks or on the Library's Course Reserve. In reality, the university had no real means to control the amount copied from an individual work and there was no requirement to record which copyright works were copied, except during survey periods. In the electronic e-reserve scenario, the CAL agreement and the Copyright Act allow only one 'reasonable portion' of a monograph to be accessible at one time for the whole university. Because digitisation is centralised, the university can and does exert control over what is copied onto the CMD database, with the result that many copyright issues have been brought to the fore in day-to-day university work.

Links to vendor databases

Wherever possible, the library links through to the required articles on full text vendor databases. Obviously these links do not involve copying and do not come under the CAL Licence agreement. Student access is covered by the database licences. In further development of the CMD, QUT proposes to use it in the medium term as a source for production of printed coursepacks and external student notes. However, there is a problem. Many of the database licences (especially aggregator databases) preclude the use of these articles in printed coursepacks. Therefore, while the copying of the articles from a print source is allowed under the CAL agreement, the copying of the same content from an electronic database source may not be allowed under the database licence. As the QUT library moves more to electronic full text journals and cancels the print, this will be a growing concern. Some possible solutions are to renegotiate database licences to allow coursepack production or, more likely, to move to a Print On Demand service for students and phase out coursepack production.

Sampling for CAL

Now that agreement has been reached between CAL and the AVCC on an Electronic Use System (EUS, a method of sampling what is digitised so that royalties may be distributed to copyright owners), library staff will find that yet another responsibility has been dropped on their shoulders. The EUS specifies that 'centres' in universities will provide the samples in each survey. Centres, in this case, are the places where the major work of digitisation takes place. At QUT, all legitimate digitisation takes place within the library, where material is prepared for the CMD. Staff of the centre will, from time to time, have to participate in surveys which collect the required data. Because of the way the regular data collection for the CMD has been set up for internal purposes, this new responsibility should not be too onerous, nevertheless, it will remain an added responsibility, with various classifications of documents being determined at the workface on a day-to-day basis. Survey durations will be twelve weeks, with a frequency of once every four to five years per university.

Multimedia

The university has held a licence with Screenrights (formerly the AudioVisual Copyright Society) since the society's inception in the early nineties. Teaching staff are familiar with the idea of being able to record programs from free-to-air television, cable and satellite transmissions for classroom use. Other media, such as music CDs, feature film and documentary videos, DVDs and CD-ROMs are frequently used in the classroom, in reliance on the provisions of section 28 of the Copyright Act, which deems classroom use not to be a public performance. It is not surprising then, that the expectations of teaching staff to include these formats in the CMD is quite high, and having seen the print digitisation issue managed, are unable to see why these other materials cannot be included as a matter of course. Whilst the Screenrights licence will allow the digitisation of material recorded under its terms, the addition of other material is not covered by the current amendments to the Act. Such additions would require individual permissions. This impasse has been the source of some expressed dissatisfaction by academics with the CMD service. Issues of server space, identification and download times are, of course, another consideration.

Database licences

Ten years ago, as scholarly publishing began to move from print to electronic, there was no legislation to cover electronic access and no models for licence agreements between database publishers and libraries. Both parties were tentative and feared exploitation. Many licences appeared to have been drawn up by the publishers' regular lawyers, and the licences and their conditions varied enormously as a result. Librarians had little expertise in contract licences and little chance of adhering to the wide variety of licence conditions. International leadership by Ann Okerson of Yale University with her lib.licence list and the International Coalition of Library Consortia (ICOLC) have helped the industry make progress towards licence standardisation although this is still far from complete. Many libraries have created summaries of their licence agreements for each database product so as to be able to achieve compliance with the licence conditions. Others have digitised and archived all their licences and put these up on their intranets. QUT library has summarised each licence and put the summaries onto a spreadsheet, available on the library intranet, so that library staff can easily find the key conditions governing each product without having to read the individual licence contract. This makes it possible for the university to comply with the conditions.

University staff and student copyright

The introduction of online teaching and the Australian Digital Theses Project (ADT) has opened discussion in the university over copyright in work produced by our own staff and students. QUT has a policy which addresses the ownership of works created by staff: students, in general, own the work they create. All parties can access information on these issues through the QUT Copyright Guide.

The university is currently inquiring into mandatory deposit of student research theses onto the ADT. This raises several issues one of which is copyright. Some of the theses, especially in science, comprise a number of published articles. Since most authors assign their copyright to the publisher, the student will need the written permission of the publisher to make such a thesis available via the ADT. If a student has, under the fair dealing provisions, included another's copyright material such as diagrams or photographs into the thesis, written permission from the copyright owner is required before the thesis can be made available on the ADT. There are also concerns about the thesis material being plagiarised because electronic publishing on ADT makes a thesis far more accessible than it was in its unpublished print form in the library's restricted stack where it was available for consultation or copying on interlibrary loan. This is another example of electronic access flushing out copyright concerns that were dormant or non-existent in the earlier print environment. The copyright expertise of the university copyright officer and library staff is sought and valued in these discussions.

Training

Development of copyright compliance across the many facets of the university uses a number of approaches. Initially, the community has to be made aware that it operates in an environment where the observance of copyright is an issue, whether this be under licence or legislation, and then it has to be given access to information so that its individual members can address the problems peculiar to their situation.

In the library arena, the provision of photocopying equipment, computers, scanners and online access in libraries has placed a whole new range of responsibilities on library staff and the institution in general. This includes the need to ensure users are made aware of the limits to copying and permitted dealings with copyright works under the Act or licence agreements, and of rights associated with the use of information resources in electronic form, including the right to communicate works. As a repository of a significant range of copyright material, a library must ensure that users are informed of how this copyright material can be used for the purposes of research or study, or for other permitted uses.

Dealing with these needs falls largely under the purview of the university copyright officer (QUT was one of the first universities to make such an appointment in 1990, at the instigation of the Pro Vice-Chancellor, Information and Academic Services, Tom Cochrane) who provides advice on a daily basis to staff and students by e-mail, face to face and phone consultations. In addition, the copyright officer maintains a website - the QUT Copyright Guide - which provides up-to-date information on most copyright matters likely to concern the university community, and conducts regular open seminars and workshops on each campus. A brochure on copyright at the university has been prepared for new staff, which provides them with basic information to get underway, and pointers to avenues of further information. The copyright officer also has a program of visits to school staff meetings, where new information is imparted and questions and concerns dealt with. A daily e-mail bulletin of current events in the intellectual property field is sent out to interested parties, and the university e-mail network is used for any notices of an urgent nature. The copyright officer gives guest lectures, by invitation, to undergraduate and postgraduate groups, and these have steadily increased in number. These are the major means by which the University provides information and training for its community.

Advice

The e-mail, face to face and phone advice provided on a daily basis is informed by the copyright officer's own attendance at conferences and workshops in the intellectual property field, by a continuing conversation with several e-mail discussion lists devoted to copyright, subscriptions to various e-mail news sources covering copyright and related areas, bulletins and other advice from the AVCC, the maintenance of a network of contacts in the industry and a continuous watch on legislative developments.

In the 2001 calendar year, telephone queries totalled 1752, face to face consultations 140, and copyright-related e-mails 4159. The majority of these enquiries are straightforward matters relating to allowable quantity copied or other licence matters, but there are enough more complex questions to make the job an interesting one.

Liaison

Establishing some cohesion in the observance of the law and licence conditions among the various sections of the university which are engaged in activities which impinge on QUT's copyright responsibilities requires the cooperation of a number of areas so that the copyright officer can be kept informed of activities and can observe and advise on compliance issues. The location of the position within the office of the Pro-Vice-Chancellor, Information and Academic Services, ensures that the copyright officer is well placed to be informed of new technologies, new teaching approaches, and other developments which may involve the use of copyright materials. Contact is maintained with the Office of Commercial Services and the library, and the copyright officer serves on the Online Teaching Committee, the CMD Working Party, and the University Intellectual Property Committee, so that there is an awareness of a wider range of the University's activities. Fortunately, the position has existed for more than a decade, and the majority of staff have been sufficiently indoctrinated over that time into including copyright in their considerations when planning new projects.

As part of recent collaboration between the Information Services Divisions of Griffith University and QUT, it was agreed to share this specialist position of copyright officer between the two universities. The result has been a saving in salary, overheads and staff development costs. Copyright issues arising at the two universities are very similar, and the training, web pages and documentation can be applied at both institutions.

On the wider scene, the university contributes through the copyright officer position to both national and international intellectual property debates. Appearances before several parliamentary committees, advice to the AVCC, submissions to the Copyright Law Review Committee, articles in national journals, letters in public forums, the conduct of workshops for various library organisations, presentation of papers at conferences, liaison with collecting society representatives, participation in international e-mail forums and membership of the Australian Digital Alliance and the Australian Copyright Society have all been ways in which the Copyright Officer has been able to be involved in presenting the university's view, contributing to the university's public service goals, and gaining knowledge so that the university might be better advised.

Conclusion

Copyright observance and compliance in universities has become too big an issue to be either ignored or left to chance. Faith is no longer enough, as the complex web of statutory and licence obligations hedge our institutions about with their requirements and obligations.

Whilst a distributed environment such as today's multi-campus university can never hope to be totally copyright-compliant, much can be done to heighten the awareness of individuals and reduce the institution's vicarious liability.

Although the library can and must make a large contribution to the observance of copyright law, there is much for which it neither can nor should be responsible, as a great deal of consumption of copyright materials takes place beyond its walls.

The creation of a position to take responsibility for these issues would seem to be a sensible idea, and from observation, an increasing number of universities are following this strategy. It is important to stress that such a position, to be effective, needs to be one where the incumbent can devote their whole time to copyright and related matters, and not a part-time position where, sadly, other matters can push copyright off the day's agenda. Such a position can, as it develops, become responsible for many things, including:

• administration of statutory copying licenses
• copyright education and awareness-raising
• inter-university liaison on copyright and licence matters
• conduct of mandatory sampling and surveys
• provision of day-to-day advice on copyright observance for staff and students
• assistance with undergraduate training in areas where intellectual property is consumed or created
• provision of advice to researchers
• advocacy on behalf of the institution for copyright legislation
• negotiation with collecting societies
• provision of advice relating to copyright where innovative teaching methods are proposed, and
• assistance to the library in their observance of copyright regulations.

Currently, there are enthusiastic moves to develop a support network of people with copyright responsibilities across the university sector. This should lead to copyright officers having access to a greater range of opinion and advice, and a more unified approach to copyright observance within the sector.

References

The QUT Copyright Guide

http://www.dias.qut.edu.au/copyright/crguidefrontpage.html

The CMD Compliance Guide

http://www.dias.qut.edu.au/copyright/CMDcompliance.html

The Copyright Agency Limited

http://www.copyright.com.au

The Copyright Act 1968 (Cwth) online

http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/index.html

The Digital Agenda Amendment Act 2001

http://www.austlii.edu.au/cgi-bin/ disp.pl/au/legis/cth/num%5fact/caaa2000n1102000321/s1.html?query=%7e+digital+agenda+bill

Screenrights

http://www.screen.org/

Instructions for Academics using the CMD

http://wwwlib.qut.edu.au/elibrary/cmd/

Michael Lean, copyright officer, Queensland University of Technology and Griffith University. E-mail: m.lean@qut.edu.au.nospam (please remove the '.nospam' from the address)
Carolyn Young, associate director, Library Services (Information Resources), Queensland University of Technology. E-mail: c.young@qut.edu.au.nospam (please remove the '.nospam' from the address).