Thanks again for the assistance. It appears
that having a distributed school/department screening
system does not get IR managers off the copyright
violation hook and that it is uncertain whether they face
liability under foreign laws if copyrighted works
submitted to the IR that are published by foreign publishers
are included in the IR against the policies of those
publishers.
Since they endanger their potential immunity under the DMCA "service provider" exemption if they or other university officials screen submissions, and they face potential prosecution by foreign publishers if they do not, it seems that IR managers are between the proverbial "rock and a hard place."
Consequently, unless I'm missing something, the only safe course of action would appear to be to screen every IR submission centrally using IR staff who are able to make well-informed judgements about the copyright status of each item and its relation (if any) to pertinent publisher policies and procedures governing e-prints and other documents, with them enforcing those policies and procedures so that no copyright violations occur.
At 10:45 PM -0400 5/31/05, Charles W. Bailey, Jr. wrote:
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.
That makes it easy but it doesn't necessarily make it
helpful. There's a big gap between no commercial purpose and
no screening, on the one hand, and a "financial benefit
directly attributable to the infringing
activity" and "the right and ability to control such
activity," on the other hand. You don't want to foreclose
the opportunity to recover costs, or abandon the right to
reject submissions, if you don't have to.
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?
This is why we don't charge for advice on CNI-C. You raise an issue that hadn't occurred to me. The "department" and "units" and "managers" and "faculty" may all just be parts of a single entity. Service provider immunity probably presumes an arms-length relationship between the content provider and the service provider. You can't immunize infringement by Content, Inc. just by running it through a wholly-owned subsidiary called Service Provider, Inc., much less by hiring a Service Manager to work in a different office down the hall from the Content Creator.
(3) What is the impact of foreign law, especially European
law, on the situation, since the copyright holders may be
non-US publishers?
Good question and another one that didn't occur to me. Service provider immunity is a sort of artifact imported by statute from the historical legal regime for common carriers -- you couldn't sue Ma Bell if you got an obscene phone call because common carriers weren't responsible for the content they carried. Whether and to what extent foreign laws adopt a similar approach for internet service providers and website operators is a question that could cost a lot of money to get a very iffy answer, and might be one of those questions that are cheaper to answer by forging ahead and waiting to see what happens. Not that I'm recommending it. 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 Sat Jun 04 2005 - 01:50:46 GMT
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