Re: Liability of Institutional Repository 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

At 11:50 AM -0400 5/27/05, Charles W. Bailey, Jr. wrote:
>I would be interested in hearing your thoughts about
>the legal liability of an institutional repository (IR)
>manager under two scenarios.
>
>In both, a faculty member has deposited a copy
>of a publisher's PDF file for an article that he or
>she wrote in an IR. Unfortunately, the publisher explicitly
>does not permit this type of use.
>
>So, what are the IR manager's liability if:
>
>(1) There is no monitoring of IR e-print submissions.
>Faculty can deposit any thing they like.
>
>(2) The IR has been set up so that a representative of
>the faculty member's department is charged with
>responsibility for screening (or not) submissions. The
>IR manager has no direct involvement.
>
>Of course, an alternative IR management strategy that prevents
>(1) or (2) from occurring is to impose IR-wide screening by
>IR managers, who would consult the SHERPA Publisher Copyright
>Policies & Self-Archiving Web site and publisher Web sites
>to determine an article's status prior to deposit. From
>a legal point of view, smart idea or overkill?
>
>http://www.sherpa.ac.uk/romeo.php
>
>
>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
>
>
>
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Received on Wed Jun 01 2005 - 06:45:01 GMT