- Tomas A. Lipinski (2003) “The Climate Of Distance Education In The 21st Century: Understanding And Surviving The Changes Brought By The TEACH (Technology, Education, And Copyright Harmonization) Act Of 2002” Journal of Academic Librarianship 362, (362-374).
- ARL Issue Brief: Streaming of Films For Educational Purposes
- Russell Complete Copyright pg. 200-201: “CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements (1978)”
I can’t believe it’s Week 7 already. Every semester in school seems to go by faster than the last–and we’re on to the 21st century with the topic of distance education!
Tomas Lipinski was a guest lecturer in our class yesterday. While none of his opinions aired in the lecture count as “legal advice,” I did get my head wrapped around a couple important licensing tips.
All you librarians out there: if you’re looking at a database license you’re thinking about signing, and it looks pretty nice and library-friendly by explicitly allowing users to use its content in distance education and distribute it to audience members at a noncommercial scholarly or educational event etc. etc., make sure you look at the indemnification and warranty clauses in the license before you agree to it! Unrestricted permission to use the database content in distance ed might be great, but the TEACH Act’s revision of Copyright Law §110(2) makes certain uses illegal. The database vendor might be fine with you using its content that way, but the copyright owners of the material the database is licensing to you may not be okay with it. In the warranty clause, check to make sure that the database vendor has the rights to allow you to do with its content what it said you could; and in the indemnification clause, check to be sure that if it so happens the database vendor had messed up in its acquisition of rights, and it turns out that the copyright owners are not okay with your using their works the way the database vendor said you could, that you are not liable for the copyright infringement.
Question, of course, is how common it is for the indemnification clause to also indemnify the Authorized Users of a license rather than just the licensee. It would be pretty shoddy of librarians to cover their backs but then leave their patrons open to lawsuits.
Examples of licenses that explicitly allow these education-friendly activities that involve more contentious interpretations of Fair Use are the ARTstor and DRAM licenses. Both of these licenses are almost exactly the same, which makes me wonder what made DRAM inclined to copy ARTstor’s license (assuming that is the case, since DRAM began in 2001 and ARTstor in the late 1990s). The fact that they share the Andrew W. Mellon Foundation as a financial sponsor may have something to do with it (perhaps shared lawyers, as our prof suggested). Interestingly enough, neither ARTstor nor DRAM’s licenses explicitly provide warranties or indemnifications. Alexander Street Press does, although their indemnity appears not to extend to Authorized Users. In ARTstor and DRAM’s licenses, the warranties and indemnifications are only implied–under the “Disclaimers” clause, they disclaim any warranty or indemnification for content or uses outside the permitted uses or database content, but does that mean they provide a warranty and indemnification for the permitted uses and database content?