Thanks for your helpful reply.
Institutional repositories generally contain faculty-produced preprints, "postprints" (published versions of articles, either the publisher's PDF or a preprint that has been modified by the author to reflect editorial changes), and a wide variety of other material (e.g., dissertations and theses, technical reports, and working papers). They may also contain non-scholarly works produced by the university (e.g., alumni magazine).
They are generally run by the library, the information technology division, or by a joint effort of both. Typically, they are not charging for access to materials. Many materials are open to the world; some may be restricted for internal use only.
A wide variety of copyright arrangements may be in place:
publishers may own the copyright to articles or other works
due to copyright transfer agreements, authors may own the
copyright and have granted the publisher various rights,
works may be under a Creative Commons license or have been
put in the public domain. When publishers own the rights, a
wide variety of policies about what versions (if any) of a
document can be put in an IR or other archive may apply
(hence the importance of the SHERPA Publisher Copyright
Policies & Self-Archiving Web site). These policies may
require that the document be modified to include specific
information, such as a link to the published article or
the journal in which it appears and/or a link to the
publisher's document delivery service.
Scientific and technical publishing is dominated by European publishers, raising the question of the need to potentially consider international law, not just US law.
Faculty and others may not always have a clear grasp of who owns the copyright and what restrictions (if any apply) and what modification requirements are in force. In order to fill the IR, IR managers sometimes deposit materials for faculty, who may be too busy to do so themselves.
So, it would appear that under "service provider" immunity, IR manager's should (1) not use the IR for commercial purposes, and (2) not screen IR submissions in any way.
If so, three questions remain:
(1) If departments (not the IR unit) screen submissions, are
they liable? (It would appear so.)
(2) If IR managers deposit works for faculty, have they
tainted their noninvolvement in the deposit process and lost
immunity? If not, should they screen works they deposit for
faculty or not?
(3) What is the impact of foreign law, especially European
law, on the situation, since the copyright holders may be
non-US publishers?
Thanks to everyone for their help in this matter, which will be of interest to many IR managers.
You're going to want competent legal advice, which this isn't because I don't know enough about how the institutional repository works, but generally the question is whether you qualify for "service provider" immunity under the safe harbor provisions of the Digital Millennium Copyright Act.
47 USC sec. 512(c) Information Residing on Systems or Networks at Direction of Users.-
(1) In General.-A service provider shall not be liable for
monetary relief, or, except as provided in subsection (j),
for injunctive or other equitable relief, for infringement
of copyright by reason of the storage at the direction of a
user of material that resides on a system or network
controlled or operated by or for the service provider, if
the service provider-
(A)(i) does not have actual knowledge that the material or
an activity using the material on the system or network is
infringing;
(ii) in the absence of such actual knowledge, is not aware
of facts or circumstances from which infringing activity is
apparent; or
(iii) upon obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly
attributable to the infringing activity, in a case in which
the service provider has the right and ability to control
such activity; and
(C) upon notification of claimed infringement as described
in paragraph (3), responds expeditiously to remove, or
disable access to, the material that is claimed to be
infringing or to be the subject of infringing activity.
(2) Designated Agent.-The limitations on liability
established in this subsection apply to a service provider
only if the service provider has designated an agent to
receive notifications of claimed infringement described in
paragraph (3), by making available through its service,
including on its website in a location accessible to the
public, and by providing to the Copyright Office,
substantially the following information:
(A) the name, address, phone number, and electronic mail
address of the agent.
(B) other contact information which the Register of
Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
The key is in 512(c)(1)B) -- whether the IR "receive[s] a financial benefit directly attributable to the infringing activity" and whether it "has the right and ability to control such activity." If there is no charge for uploading or downloading archived articles, and it's operated by a non-profit and doesn't sell banner ads, you would seem to be in the clear. If there's any money moving around, it needs a closer look. There are only a few cases addressing the second part of the equation, but the ones I have seen take a pretty liberal view, allowing for some "right and ability" to screen for topicality, obscenity, etc., without finding a broad right and ability (mostly ability) to screen for copyright infringement. So my impression (which isn't the same thing as a legal opinion) is that you're probably safe under your first and second scenario, and that the third alternative would be counterproductive inasmuch as it would increase your costs and your exposure.
John Noble
Best Regards,
Charles
Charles W. Bailey, Jr., Assistant Dean for Digital Library Planning and Development, University of Houston, Library Administration, 114 University Libraries, Houston, TX 77204-2000. E-mail: cbailey[_at_]uh.edu. Voice: (713) 743-9804. Fax: (713) 743-9811. DigitalKoans: http://www.escholarlypub.com/digitalkoans/ Open Access Bibliography: http://www.arl.org/pubscat/pubs/openaccess/ Scholarly Electronic Publishing Bibliography: http://info.lib.uh.edu/sepb/sepb.html Scholarly Electronic Publishing Weblog: http://info.lib.uh.edu/sepb/sepw.htm Received on Wed Jun 01 2005 - 06:45:01 GMT
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