Open Access Repositories, Copyright, and Fair Use at ACRL
Indianapolis cityscape 
Winchester, MA Open access repositories using DSpace or Fedora open source software are growing in numbers of installations worldwide (1,500+), as well as in the volume and diversity of resources that they help to make available. There are success stories about how institutions have grown their educational "footprint"  internationally, and among those who have not traditionally had access to high quality digital resources by disseminating collections through institutional repositories. This kind of uptake inspires librarians to find ways to add more content to the open access mainstream. At the recent ACRL Conference  in Indianapolis a workshop  on copyright and fair use was well-attended and sparked lively conversations between presenters and attendees.
American Library Association President Maureen Sullivan set the stage for this significant topic in a recent letter  to The New York Times.
"There is a necessary and vital balance between the interests of rights holders and the rights of the public, between commerce and learning. Throughout history, we (librarians) have been able to maintain this important balance and have confidence we may do so in the future.
Finally, United States copyright has limits and exceptions for a reason. There is a necessary and vital balance between the interests of rights holders and the rights of the public, between commerce and learning. Throughout history, we have been able to maintain this important balance and have confidence we may do so in the future.
Libraries understand and are also gripped by seismic shifts under way in the publishing ecosystem, but authors and libraries should work together to reach and serve readers."
Calling mandates for open access to research, changing commercial interests, institutional repository deposit policies, complex author rights and skyrocketing user expectations based on the ubiquitous 24/7 mix of news, social media and entertainment "seismic shifts" is an understatement. Libraries and librarians are at the nexus of creating an egalitarian balance among many stakeholders caught in a complex web of knowledge creation, preservation, economics and distribution–for the greater good of society.
The ACRL workshop, "Speculation to Litigation – Copyright and Climate Change in Libraries"  was offered by a panel of scholarly communications experts in the field of intellectual property management who presented their interpretations of case law and best practices as part of the ACRL pre-conference proceedings. Dwayne Buttler, J.D., Professor and Evelyn J. Schneider Endowed Chair for Scholarly Communication, University of Louisville; Kenneth Crews, Director, Copyright Advisory Office, Columbia University; Carl Johnson, Director, Copyright Licensing Office, Brigham Young University; Donna L. Ferullo, J.D., Director, University Copyright Office and Associate Professor, Purdue University led a frank and open exchange of ideas about how libraries can more effectively serve university researchers while also promoting open access to growing collections of digital materials.
It was suggested that college and university librarians should better understand emerging copyright and fair use-related use cases and associated questions surrounding distribution of digital content. What you are trying to do with specific sets of resources dictates what kind of permissions will be required to disseminate it.
Emerging use cases
ALA reports  that academic Libraries hold approximately 158.7 million e-books and that 57% of library card holders prefer borrowing e-books; 33% prefer purchasing them. The increasing popularity of e-books presents a new and somewhat complex set of copyright issues for libraries to contend with. What does it mean to take an e-book out of the library or to copy or annotate parts of it? Who benefits financially? Are libraries in competition with publishers and distributors? Who controls re-distribution of e-book copyrighted content?
Before e-books were available passing a paperback on to a friend was not considered a copyright violation because there are U. S. Copyright Law "fair use" exceptions  that make allowances for not-for-profit information sharing for educational purposes. Owners control re-distribution of copyrighted materials except in cases of fair use. Individuals would not have the right to re-distribute a book, or for that matter take books out of a library, if it were not for exceptions to the Copyright Law.
On Feb. 22, 2013 the White House Office of Science and Technology Policy (OSTP) required "Federal agencies with more than $100M in R and D expenditures to develop plans to make the published results of federally funded research freely available to the public within one year of publication and requiring researchers to better account for and manage the digital data resulting from federally funded scientific research."  Agencies have been asked to have plans in place to move forward with one of the biggest open access initiatives in the world in six months.
Along with the technical details of how open access will be provided, Federal Agencies are also faced with untangling rights management for works that may have multiple licensing agreements in place with several entities.
Course materials associated with Massive Online Courses (MOOCS) require librarians to know the facts with regard to fair use. Distance learning reaches people all around the world. Legal analysis of intellectual property rights is different particularly from the standpoint of ownership from country to country. For example, does permission from the rights holder include the ability to use materials in countries where copyright is influenced by local culture? Details must be spelled out in the exchange of permissions correspondence. It is suggested that content licensed using Creative Commons licenses  may already grant non-profit educational use that can be helpful in administering MOOCS.
ETDs (Electronic Theses and DIssertations) in institutional repositories are a key component of the scholarly output of an institution. Repository managers are finding that as faculty members add materials to IRs they do not always know which rights agreements they may have already signed. This makes it challenging to understand whether materials should be embargoed and for how long. The best policy in granting open access to materials in IRs is to advise keeping copies of any signed rights agreement for the rest of your life plus 70 years.
Among "classic fair use" use examples are materials related to traditional scholarship represented by ETDs in open access IRs such as research data, images and video clips.
The controversial question of whether researchers own their scholarship for the purpose of advancing teaching and learning is at the heart of sorting out copyright and fair use. Faculty should be informed when policies that affect them are changing. Keeping file copies of all related rights correspondance is suggested as a protection against future litigation.
Perhaps ACRL 2013 keynote speaker Henry Rollins described as "singer-songwriter, punk icon, activist, spoken word artist, comedian, author, poet, publisher, photographer, actor, radio dj, television host, activist, nomad and raconteur"  made the best case for why issues around copyright and fair use are critical. He gave an intense explanation of what access to information had meant to him during formative and sometimes chaotic stages of his life. He gave full credit for his passionate appetite for learning, and respect for careful documentation of history and culture to the the ongoing work of libraries and librarians. "Get angry about something each day," he advised. Libraries preserve and deliver information that makes it possible to go beyond anger and toward solutions based on understanding and knowledge. Rights management is part of this carefully balanced equation.
1. eCampus News: Advancing Student Learning with DSpace and Fedora. DuraSpace Blog, March 3, 2013. http://duraspace.org/ecampus-news-advancing-student-learning-dspace-and-fedora
2. ACRL 2013 web site: http://conference.acrl.org
3. Speculation to Litigation – Copyright and Climate Change in Libraries. Proceedings of ACRL 2013, April 10-13, 2013. http://conference.acrl.org/speculation-pages-272.php
4. Libraries and Authors. Letter to The New York Times, April 10, 2013. http://www.nytimes.com/2013/04/11/opinion/libraries-and-authors.html?src=rechp&_r=0
5. Quotable Facts About America's Libraries. American Library Association (ALA) brochure. http://www.ala.org/offices/ola/quotablefacts/quotablefacts
8. Creative Commons licenses. http://creativecommons.org/choose/
9. ACRL 2013 keynotes. http://conference.acrl.org/keynotes-pages-261.php
10. Photograph by Carol Minton Morris