April 15, 2008 @ 11:04am
This topic is an outgrowth of the discussion at http://www.librarycopyright.net/wordpress/punbb/viewtopic.php?id=1430 , but you do not need to read that discussion first.
Here’s the situation that prompted this post:
I was involved in a discussion among librarians about how to help students find specific testing instruments, such as questionnaires. Some librarians felt that we need to warn students about copyright when we find questionnaires in journals or dissertations because many of the questionnaires in Mental Measurements Yearbook must be licensed. I disagreed.
I’m interested in your reaction to my position. I’d like as much feedback as possible. Whether you agree or disagree, I’d like to know. Because many of us are librarians, I use “we” to refer to librarians, but I am interested in all perspectives.
Here’s my position:
Should we educate users about copyright in general? Absolutely.
Should we, particularly librarians in educational settings, warn users, particularly students, about copyright while responding to a specific request for information? Almost never. Almost all exceptions would be situations in which the librarian either knows or strongly suspects that the user will be using the copyrighted material to make money. Of course, we can certainly discuss copyright if asked.
Should we warn users in the questionnaire scenario? Absolutely not.
Problem 1: We are not the police. If we have real evidence that suggests that infringement is likely, we should act on it. If not, we should presume innocence, not guilt.
Problem 2: Questionnaires should not be given special protection. Doing so elevates student use of a questionnaire for a school project to the level of motion picture piracy. Even if the use is illegal, we should recognize that one crime is more serious than the other.
Problem 3: Authors of journal articles should not be equated with commercial publishers. The publishers in Mental Measurements Yearbook are interested in profiting from their questionnaires and other tests. They do not publish their questionnaires in journals, and they require licensing. Journal authors are interested in scholarship. In the sciences and social sciences, journal authors should expect others to attempt to duplicate their results. If an author used a questionnaire to reach a conclusion, that author should expect other researchers to use the same questionnaire. A submission of experimental results to a journal implies that the author accepts the ground rules of science.
Problem 4: Fair use should not be ignored, especially in educational settings. Factor 1 is in favor of fair use 99% of the time. Although some questionnaires are more creative than others, I believe that factor 2 is in favor of fair use in most cases involving scholarly publishing.
All reaction is welcome.
April 15, 2008 @ 11:04am
I agree that this is an important reframing of the issue, and I agree with you, AFry, that it is inappropriate for a librarian to package an unsolicited warning about copyright with every reference response that involves a testing instrument. As librarians we are supposed to refrain from giving legal advice to patrons, about copyright every bit as much as about taxes. We would never say to a patron "I think you need to declare that income on an IRS form SE," we would direct the patron to the instructions for self-employment income and keep our opinions to ourselves. If we offer an opinion about the legality of specific situations we run the risk of the unauthorized practice of law, as well as of liability if we are wrong.
But it is important to remember that this caveat cuts both ways. If we should not warn patrons about possible infringement, we also should not assure them about fair use. In the latter case as in the former, we should refer them to appropriate tools. Is it acceptable, however, in both cases for the librarian to point the patron to copyright resources without being specifically asked? That is, can we say "when you are considering how to use that resource, you might look at [insert name of your favorite copyright resource]?"
As for the problem you outline, you are right, of course, that we are not the police (who are themselves supposed to presume innocence). Most of us are also not lawyers and need to be careful not to give legal advice, either on the reference desk or on this forum. Your other three problems all go to your continuing argument that use of a published questionnaire should not be infringement. I disagree, as you know by now, but I would also point out that these are "pro" arguments that we should refrain from sharing with patrons just as much as we should refrain from issuing the "con" warning that bothered you in the first place.
April 15, 2008 @ 11:04am
Thanks again.
I agree that we should be careful about assuring as well as warning. You've given me a lot to consider.
A few clarifications:
I'm not suggesting that published questionnaires are not protected by copyright.
In problem 2, I'm stating that questionnaires deserve no more protection than the journal articles in which they appear, novels, motion pictures, or any other copyrighted work.
In problem 3, I'm trying to think from the perspective of an author of a research article. Because of my training as a scientist, I assume that any questionnaire in a scholarly article that I write will be used by other people. I don't expect them to ask permission. I consider permission to use the questionnaire for non-commercial uses to be implicit in my submission. I believe that this thinking is the norm among scientists and social scientists.
April 15, 2008 @ 11:04am
Regarding your last paragraph, you should recall that more often than not, copyright in scholarly journal articles is held by the publisher, not the author. Most publication contracts, although not all, I am glad to say, transfer the copyright to the publisher and grant limited use rights back to the author. Thus the intentions or expectations of the author will have little relevance if an infringement issues should ever arise, and permission is sought, if needed, from the publisher.
April 15, 2008 @ 11:04am
[quote=ksmith]Is it acceptable, however, in both cases for the librarian to point the patron to copyright resources without being specifically asked? That is, can we say "when you are considering how to use that resource, you might look at [insert name of your favorite copyright resource]?"[/quote]
Personally, I think that this is quite acceptable. I don't look at myself as the copyright police, but I do see myself as an educator, even though I don't work in an academic institution. I see informing people about copyright resources as similar to telling them about a relevant online database when they ask for a book, or about our downloadable audiobooks when they ask about our CDs. Clearly, special caution must be used when dealing with legal or medical information, but I don't think this means we need to avoid bringing it up as long as we don't give actual advice.
April 15, 2008 @ 11:04am
No one else wants to comment?
I've given a lot of thought to the question that Freya quoted.
I think that many librarians are completely unqualified to say anything about copyright. I believe that NYU's settlement has resulted in generations of misinformed librarians. I've had several conversations with librarians (none recently) that are almost identical:
Me: "Do you know the four factors of fair use?"
Other librarian: "Yes."
"What are they?"
"Spontaneity and...uh...I forget the rest."
I believe that anyone who fails this test shouldn't give any advice at all. "No, but I can point you to a good site" is a passing answer.
However, I have no problem with knowledgeable librarians giving advice when asked.
Reason 1: My job requires me to make fair use determinations. My job doesn't require me to fill out tax forms or diagnose medical conditions.
Reason 2: My job requires me to assess the quality of information sources and teach students about misinformation. I believe that misinformation about copyright is rampant.
Thanks for your responses.
April 15, 2008 @ 11:04am
OK, I followed the discussion all the way until A. Fry mentioned the NYU settlement. Someone please tell me what that is.
As a school librarian it is my responsibility to inform my staff and students about copyright. I would hope (but never assume!) that by time a student gets to college, he/she would have an idea what it was all about. I think we in the library field should engage in the education of others (students, colleagues, whatever) about copyright but in a non-threatening way. I know I take every opportunity that I can.
April 15, 2008 @ 11:04am
My memory is hazy, so I may have some details wrong.
The Association of American Publishers sued NYU for creating coursepacks (in 1982, I think), NYU settled out of court. As part of the settlement, NYU agreed to follow the classroom guidelines. The AAP then blackmailed many academic libraries by threatening lawsuits unless the classroom guidelines were adopted.
So, for NYU, the guidelines are law. Many other libraries had agreed to treat the guidelines as law. Subsequent generations of librarians learned that the guidelines are law when in fact they aren't. I would argue that the guidelines contradict the law. At best, they are a conservative interpretation of the law.
As I recall, "The Model Policy, NYU and Kinko's: 1982-1991" is a good article. I haven't read it in years. This link worked for me.
http://www.haworthpress.com/store/E-Text/View_EText.asp?sid=39NGFD87JQ6A9GS4VMGHGVWCK6WK37PE&a=3&s=J474&v=15&i=2&fn=J474v15n02_05
April 15, 2008 @ 11:04am
It seems difficult to say that the classroom copying guidelines contradict the law, since they were included by the Judiciary Committee in the legislative history of the Copyright Act in 1976. But that House Report itself acknowledges that the guidelines are a conservative interpretation (minimum standards) and recognizes that they may be inappropriate for some settings, including higher education.
I agree that librarians should educate users about copyright. And it is certainly true that many librarians do not understand what is, after all, a very complex and difficult area of law that even many lawyers have little grasp of. In fact, I am not sure if the ability to recite the four fair use factors is a sufficient "final exam" for librarians on copyright; there are many other nuances and exceptions that also should be learned. Personally, I think a course in copyright should be required in library school.
But no matter how much a librarian knows about copyright, there is still a difference between making fair use determinations for one's place of work, as well as educating patrons about copyright, and offering specific advice about particular situations. The first two, it seems to me, are legitimate and even necessary functions for a librarian, while offering specific advice raises the risk of practicing law without a license. Even law librarians who hold a J.D. observe this distinction (because for them it raises both ethical and practical problems of the lawyer/client relationship) and avoid answer questions like "is this particular activity covered by fair use."
April 15, 2008 @ 11:04am
[quote=ksmith]But no matter how much a librarian knows about copyright, there is still a difference between making fair use determinations for one's place of work, as well as educating patrons about copyright, and offering specific advice about particular situations. The first two, it seems to me, are legitimate and even necessary functions for a librarian, while offering specific advice raises the risk of practicing law without a license. Even law librarians who hold a J.D. observe this distinction (because for them it raises both ethical and practical problems of the lawyer/client relationship) and avoid answer questions like "is this particular activity covered by fair use."[/quote]
I completely agree. We should not let refraining from giving legal advice keep us from educating patrons, and likewise, we should not let educating patrons on copyright law draw us into giving specific legal advice. It can be a tricky line. I try to focus on helping people with the various steps that they may have to take and the options to consider, without telling them what decisions to make along the way. And, although a disclaimer doesn't give us carte blanche to act inappropriately, I do tend to remind people frequently that I am not a lawyer and any information I provide should be considered generally, rather than as specific legal advice.