COPYRIGHT OWNERSHIP & THE IMPACT ON ACADEMIC LIBRARIES
Laura N. Gasaway* © 2003
Academic libraries play a key role in educational institutions in many spheres, including copyright. Library collections house both copyrighted and public domain materials and their missions are to make these works available to students and faculty in support of teaching, learning, research and scholarship. Some of these copyrighted works are owned by faculty members, universities and publishers, but academic libraries also create copyrightable works. Librarians and library staff members develop copyrighted works and libraries often are the moving force behind the work done by colleges and universities to reexamine their copyright ownership policies in light of changing technologies, pedagogies and delivery methods for courses. Because of these same changes, there is a trend on the part of institutions of higher learning to increase the control and management of copyrighted works created on the campus. At the same time, old models of scholarly communications are becoming increasingly problematic as both the cost to acquire copyrighted works and the quantity of works published increases. Library associations have been at the forefront in dealing with these issues. Associations have proposed alternatives to the current models of scholarly communications that will provide greater control by faculty authors, while at
the same time ease some of the strains on library budgets caused by rapidly escalating journal prices and the tremendous increase in scholarly publishing.
All of these changes, as well as increased concern about copyright ownership, provide an interesting background against which to examine the impact of copyright ownership and management on academic libraries.
A. Importance of Faculty Members’ Ownership of Their Copyrights
The importance of copyright ownership to college and university faculty and to the institutions in which they work is clear. By tradition, individual faculty members own the copyrights in the works they produce even though many argue that higher education institutions could have claimed authorship and thus ownership under the work for hire doctrine. Few academic institutions exercise a claim of ownership even if it could be made, assuming that it benefits the individual faculty member to own the copyright in their works and serves as a reward of sorts to the faculty author who thus has the right to control their works. Moreover, most faculty-generated scholarly works produce no income. Increasingly, however, universities and colleges are interested in either owning the rights in their work product such as syllabi, laboratory manuals, tests, datasets and online courses; or, at a minimum, in having the rights to continue to use the work even after a faculty member leaves that particular institution. They may also want to commercialize or participate in the commercialization of these course materials. Some academic institutions may even go farther and claim all of the works that faculty members produce, but this is not the norm in higher education in the United States.
In order to have a work published, a faculty author often must transfer the entire copyright to a publisher. Colleges and universities are encouraging faculty members to retain certain rights in their scholarly works even if copyright ownership is impossible under publisher requirements. These include the right to reproduce the work for the faculty author’s own classes, to place the material on reserve in the library, either print or electronic reserves, and to retain the electronic rights to their articles. If the latter is not possible, sometimes publishers will permit the faculty author to place the article on a website six to twelve months after publication in print or electronically. This permission might be limited to password protected websites only, or it could be free of such restrictions.
B. Student Ownership of Copyrights
Students own the copyright in the works that they author for courses and programs. Graduate students who produce dissertations and theses certainly own the copyright in these works. But university libraries have a unique copyright issue with these documents, but not a question of ownership. In order to complete graduate work in most institutions of higher learning, the graduate student is required to provide two copies of her dissertation or thesis to the university library. The library will then add that work to its collections and the work may be used by patrons just as any other material. Moreover, the library will use the dissertation or thesis for interlibrary loan. Most institutions require graduate students to file some type of intent to complete graduate studies. Part of this is an agreement that can be drafted to provide the above mentioned copies of the completed dissertation or thesis to the university library. While the library certainly does not hold the copyright in these works, the signed forms permit it to use these graduate papers in certain ways.
C. Library Interest in Copyright Ownership
Much of the interests of academic libraries concerning copyright ownership actually center on concerns about the rapidly escalating costs of journal subscriptions, especially in science and technology. These increases cause serious budgetary concerns for libraries but also negatively impact disciplines in the humanities, social sciences and other subject areas that rely on monographic materials, since the purchase of monographs is often sacrificed in order to maintain journal subscriptions. At one time, scholarly societies published scholarly journals in many disciplines with high quality but lower cost journals. As publishing costs rose, however, many of these societies turned over publication of their journals to commercial publishers, which resulted in higher priced journal subscriptions. Library science journals are filled with articles bemoaning increasing journal costs, especially during times of static or even declining budgets. The cost of journal subscriptions has far outpaced the annual rate of inflation in the economy and library budgets. As journal prices increase, the balance between journals and monographs that many university library collections try to maintain is lost. Libraries proposed several solutions: (1) to find other publication outlets for faculty members beyond those offered by commercial publishers; (2) to work with commercial publishers to reduce the cost of subscriptions and (3) to develop some other models of copyright ownership. Libraries assumed that if faculty owned their copyrights, this would result in lower journal costs and perhaps even free copies for the library collection and for distribution to classes.
Librarian and library associations have led many of the efforts to reexamine copyright ownership policies on university campuses with an eye toward both preserving additional rights for individual faculty members, and to further the ability to share these works across campus and all of academia. This is done either through interlibrary loan or by other methods. This is based on an assumption that faculty authors are more likely to grant broad permission to use their works within the institution free of charge and may be willing to grant the same broad permission across all of academia. Even if faculty do not own their copyrights but instead publish their work in lower price journals, libraries and their users will benefit since libraries will be better able to afford the cost of the journal subscription.
D. Library Ownership of Copyrights
Not surprisingly, university libraries do not hold the copyright on most of the works in their collections, but libraries do own copyrights in some items. There are three primary types of works in which the library itself may hold the copyright: (1) works produced by library staff members as a part of their jobs; (2) archival materials in which the copyright was transferred to library along with the artifact and (3) digital library projects. The majority of this article focuses on these three issues and concludes with a discussion of alternatives to traditional publishing that will affect copyright ownership and impact academic libraries particularly.
II. Copyright Ownership of Library-Generated Works
Libraries actually generate a number of works that may qualify for copyright protection. Some of these materials may be attributed to individual staff members working in their capacities as librarians; a good example of such is a library webmaster who is responsible for producing and updating the library’s webpage. There are also library-produced works of doubtful copyrightability which are jointly created by a large number of library staff members working in concert. An example of this type of work is the online library catalog. There are also works that the library commissions such as paintings, photographs, maps and even studies and reports on which it may hold the copyright.
A. Works by Librarians and Library Staff
Works created by library staff members for the benefit of the library are varied and important to the institution. The most valuable jointly created work that a library has is its online catalog. Because of the factual nature of the data contained in a library catalog and standardization in the way data elements are presented and the information is arranged, it is unlikely that a library catalog is copyrightable. The library catalog consists of fact-based bibliographic records for all works in the library’s collection, arranged by an accession number. Entries may be retrieved from the catalog by author, title, series, International Standard Book Number, subject headings and classification number. Today, users often prefer to perform keyword searching in library catalogs, but these terms are often either word found in the work’s title or subject headings which likely qualify as facts about the book. It was long assumed that under the “sweat of the brow” doctrine, library catalogs were copyrightable, and, in fact, some library catalogs were produced as book catalogs and were sold to other libraries as bibliographic references. After Feist Publications v. Rural Telephone Co., the “sweat of the brow” doctrine was eliminated and no longer could a work that consists of a collection of facts be copyrighted just on the basis of the hard work it took to produce the work. So, despite its importance to libraries and library users, an online catalog is not likely copyrightable.
Libraries also produce webpages, research guides, library handbooks, pathfinders, some software, teaching materials for bibliographic instruction, and multimedia presentations for virtual tours of the library, newsletters, and audiovisual works on how to use the online catalog, annual reports, strategic planning documents, library displays and bulletin boards. Most of these works are created by librarians and library staff members within the scope of their employment, and they are works for hire. The Copyright Act defines a work for hire as a work produced by employees within the scope of their employment or a work that is ordered or commissioned for use as a collective work. For this latter category, however, only certain types of contributions are defined as being a part of such a collective work. These include contributions to the following: (1) a motion picture, (2) a translation supplementary work, (3) a compilation, (4) instructional text, (5) a test or answer material for a test and (6) an atlas. Moreover, the parties must agree in writing to the above arrangement. Because whether someone is an employee or not is not always clear, courts have identified a number of factors to help determine whether a work is a work for hire. In the library, however, the situation is usually clear when the individual producing the work for use by the library is a regular library employee and works either full or part-time for the institution. Library employees tend to be on the regular payroll of the college or university, have federal taxes and social security taxes withheld from their wages are offered insurance coverage, provided with a place to perform their duties, given tools to complete the work and their work is directed by the library employer who assigns tasks to the employee.
Contract employees who are hired to work on a particular project, (such as reclassification) who are actually employees of a library employment service and are paid directly by that service are likely to be an exception. The copyrightable works they produce are most likely in the nature of commissioned works, but not of the type covered under the definition of work for hire. In all likelihood, it probably does not occur to these individuals to assume that they own any rights in works that were produced for and at the direction of the library. In order to avoid problems, however, academic libraries would be better served to clarify this issue in contracts with the library employment agency and the individual employee up front.
One exception to the general rule that the library owns the copyright in works created for it by its employees, involves the faculty status of librarians. In many academic institutions, librarians are members of the faculty. In others, librarians are classified as employees with professional status but are not faculty. For those who are faculty members, the issue of copyright ownership is complicated. Certainly, the works they produce for the library such as research guides, library webpages and reports are done within the scope of their employment and the library owns the copyright. But with respect to copyright ownership, scholarly articles written by faculty librarians should be treated the same as articles by other faculty members. In most institutions this will mean that the librarian owns the copyright in scholarly articles he produces. There is little reason that an academic library would want to claim ownership of articles that are written by librarians, even those that utilize the librarian’s professional expertise, research skills and experience gained on the job. Indeed, in many academic libraries, librarians are expected to contribute to the body of scholarly work in librarianship and to publish. The library actually garners good publicity when its librarians publish scholarly articles since the name of the library appears prominently in the biographical information about the author. Furthermore, libraries seldom need to own the copyright in order to use the article or to provide access to members of the campus community or the profession. Most librarians are extremely flattered when anyone wants to use one of their articles, including their employer, and most of them grant permission broadly, even for multiple copies. Just as with most scholarly articles by other faculty members, there is little cash value in the production of the article, so there is no financial incentive for the library to claim copyright ownership. Instead, the benefits a librarian receives from publishing scholarly articles are primarily reputational but may lead to tenure and promotion, just as for teaching faculty. Moreover, similar to other scholarly authors, librarians often have to transfer the copyright in their article to the journal publisher as a condition of publication. This certainly is the case with most journals in library science. Thus, it makes little sense to argue about ownership of the copyright in most of the scholarly articles produced by academic librarians.
Should a faculty librarian teach a substantive course as opposed to bibliographic instruction, legal research, or the like, the teaching materials the librarian develops for that course should also be treated the same as those created by other faculty members in the institution. Librarians also prepare teaching materials for library-related courses such as bibliographic instruction classes, legal research and writing. There have been few reported disputes between libraries and librarians over the ownership and use of these teaching materials. It may be that librarians are less proprietary with these materials than are other faculty since the nature of teaching these library-related courses is collaborative and often relies on team teaching. Thus, the idea of sharing within the library is the norm, as opposed to solo ownership by an individual librarian.
Librarians also create totally unrelated works outside the scope of employment, and the library certainly has no ownership claim on the copyright in these works. Librarians write novels, plays, poetry, short stories; create paintings and compose music. There is little doubt that the librarian owns the copyright in these works which are not created within the scope of employment.
It is also possible for a library to provide a great deal of support to a librarian who produces a copyrighted work such as research by other librarians, manuscript preparation and monetary support for conducting surveys. In this instance, the library and the librarian should agree up front who will own the copyright, and whether both the library and the librarian author have reuse rights. In the event that the work is commercialized and actually produces income, the library might insist that it be reimbursed for expenses it incurred in the production of the work from the income the work generates. But this should be handled by a contract up front.
2. Library staff
Works by non-librarian staff members developed for the library are almost certainly works for hire. However, staff members may also produce works on their own time and would own the copyright in those works. There is an element of unfairness since works by faculty librarians are treated differently from those of other librarians and support staff members, but it parallels the same division between staff and faculty works throughout of the university.
3. Student Employees, Volunteers, Interns & Graduate Assistants
Works created by student workers employed by a library, whether they were student library assistants, desk attendants, pages, shelvers or paid graduate assistants, are likely works for hire. Although such individual student assistants may primarily be students who author their own papers or theses, the work performed for the library is as an hourly or salaried employee. Libraries rely heavily on student assistants for collection maintenance, reshelving of materials, staffing the circulation desk and other routine tasks. These tasks generally do not produce copyrightable works. However, graduate assistants and other student workers may develop bibliographies, WebPages, newsletters and library displays as a part of their job duties. These works are copyrightable if they are original and fixed. Works created in this capacity are works for hire, and the library itself is the author according to Copyright Law.
Even students who serve as unpaid interns and volunteers are probably considered to be employees in this context. Although wages are not paid, the library certainly directs their work, assigns additional projects and provides both workspace and tools. For internships, students may actually receive academic credit for their work in the library and often a student produces a copyrightable work for the library as a part of that internship. By agreement, the library has access to and may use the work for library purposes while the student may use the work to fulfill course requirements. There are no reported disputes involving the ownership of the copyright in these works, but if such a work were commercially viable, one could envision a situation when a student intern created software or a webpage and either the student or the library wants to commercialize it. There is no clear answer as to which party owns the copyright in this situation; hopefully, the parties will willingly agree up front as to ownership or absent an agreement, share ownership and avoid a dispute.
B. Works Commissioned by the Library
When a library contracts with an outside agency to produce a work for the library, it is natural to assume that the library, which is paying for the creation of the work, will own the copyright. In the past, however, making such assumptions with works such as photographs, software and graphic designs has harmed libraries. There are reports of photographers hired by a library to photograph a special event or the dedication of a new library building who later claimed copyright in the photographs. Conflicts over ownership of the copyright in the photographs may not arise for many years. The library immediately used the photographs for its purposes such as in a brochure or other publication or had them framed to display in the library. One can envision problems arising in three instances. First, the library later digitizes the photographs and puts them on a library webpage over the objections of the photographer. The second problem occurs several years later when the photographer has become famous and publishes a major retrospective of his work, without the permission of the library to include these works in the publication. A third scenario might arise when the once struggling photographer has now received major recognition as an architectural photographer for brilliant lighting and framing of buildings. Someone on the library staff remembers that the library has some photographs of its building taken by this photographer, and the library reproduces the images on tote bags and coffee mugs to sell for a fundraising project.
Computer programs produced for the library by software developers hired exclusively for this purpose poses a similar problem when programmers later claim copyright in the programs produced for the library, and either there is no written contract with the programmer or the terms of the contract are unclear as to ownership of the copyright. Other problems have occurred with graphic designers hired to produce a logo for the library who later claimed that they owned the copyright in the logo design.
Clearly, the contract with a producer, such as a computer programmer or graphic designer, should specify ownership rights. Most often the library will mandate that it owns the copyright in the work, the fee it is paying for production of the work, and other specifics concerning future uses of the work by the producer. The library should register the copyright in its name once the work is completed.
The other side of the coin is that libraries are often contractors for other organizations and may produce copyrightable works for others under the contract. The same advice concerning definition of copyright ownership rights in addition to payment issues, and completion dates applies when the library is performing the work as the contractor as opposed to being the contracting agency.
C. Digital Library Projects
Libraries all over the world are involved in “digital library projects” in which the library digitizes materials from its collection and makes them available to the public. Sometimes these are referred to as digital archives. Libraries are engaged in creating digital libraries consisting of a variety of materials, for example, on a special subject matter or theme, the works of a particular author which may include letters, journals and manuscripts, or works in a special format. The reason such digital collections are created is to produce an electronic library that will be valuable to researchers everywhere, and thus libraries seek to make unique materials from their collections available online. Often, this material is in the public domain, but not always. Naturally, there are copyright concerns when a library digitizes works that are still under copyright, but that is outside the scope of this paper. So, assume that the works the library digitizes are in the public domain or that the library has obtained permission from the copyright holder. Does the work the library performs to create the digital version of the work or the digital library itself qualify for copyright protection? At least one case has held that creating the digital version of a work does not create a new copyright in the work. Publishers used to rationalize that it was difficult and labor intensive to digitize a work and therefore the digital version should be separately copyrightable. This theory was always somewhat suspect since copyright is found in the underlying work, not in the format in which it is stored or presented.
Digital library projects are very labor intensive, but the “sweat of the brow” doctrine no longer provides copyright protection for such projects. Therefore, no matter how much work is required to digitize it and determine that it is within the public domain, no copyright is available on the basis of hard work. Two other possibilities for copyright protection exist. First, the entire project, as a compilation of digitized public domain works, may qualify for copyright protection if it meets the criteria articulated in Feist v. Rural Telephone. Under Feist, a factual compilation may qualify for copyright if there is sufficient originality, such as, creativity, which is found in the selection of the factual data, organization of the database, indexing and value adding. For example, if the library selectively chose certain items to include in the digital library instead of all the data, it might satisfy the selection criteria. However, this is not as likely, since normally a library will include all of the items that it owns on a given subject or by a certain author in the digital library. Thus, the digital library may use a total universe of data – just as the white pages of the phonebook in Feist was a total universe of data.
The second possibility for copyright ownership on the part of a library is the original work that the library may do to accompany some of these digitized items, such as biographical information, publishing history of the original work, the impact the work has had on culture, literature, or art, over the years. This original material appears along with the digitized work. An example of this type of digital library project is the North American Slave Narratives from the University of North Carolina’s documenting the American South project. Librarians have recorded biographical data about the former slave who produced the narrative, along with other information and have made this additional information along with the narrative. Thus, the original work may be sufficient to receive copyright protection for the compilation.
Another type of digital library is more properly called a departmental or institutional compilation. With the permission of faculty authors, a number of law school libraries have digitized examinations; academic libraries have digitized other faculty-generated materials such as case studies, problem sets. Some libraries are creating digital archives of faculty papers, including unpublished works. Although the copyright in these individual works probably belongs to the faculty author, the library that creates and manages such a repository might claim copyright in the compilation itself if it satisfies the Feist criteria.
III. Library ownership Rights in materials it manages: Archives & institutional repositories
A. Difference in the Copyright and the Physical Object
Copyright scholars and practitioners certainly understand the difference between the copyright the physical object in which the work is embodied. The copyright is in the literary work; the tangible object in which the literary work is embodied might be a hardcover book, a paperback, or an audiorecording an electronic book. Thus, the copyright is in the underlying literary work, not in the format in which the work is stored. Libraries have not always understood this distinction, and there are very practical problems caused when librarians misunderstand the distinction. For published works in the above mentioned medians, there is little confusion, but there are still some misconceptions about what is copyrighted on a CD-ROM format. For example, some librarians do not understand that it is the literary work or musical work and sound recording that are copyrighted rather than the CD itself. For archival materials, however, problems with this distinction are legend. It is often difficult for librarians and archivists to separate the two because they confuse ownership of the tangible object with ownership of the copyright.
The status of many of the items in an archival collection is uncertain due to poor record keeping, especially in the early days. For example, the owner of a letter from a literary figure donates the letter to a library. The deed of gift relates only to the transfer of the physical object, the letter, and normally does not deal with transfer of the copyright. Today, librarians are more likely to recognize that the library may own the only extant copy of a letter, but that this ownership does not confer the copyright in the work to the library. As a matter of fact, the donor of the letter is likely the recipient of the letter and not the author, and thus the recipient does not hold the copyright and therefore cannot transfer it to the library. If the donor is not the recipient but someone else, he may not hold the copyright unless he is the heir or other beneficiary of the author of the letter.
A typical situation for a library was illustrated by the Salinger v Random House, Inc. in which a donor, the recipient of letters from the reclusive author J.D. Salinger, gave letters written by Salinger to a library. The case dealt with Salinger’s attempt to prevent publication of these unpublished letters and was the first in a series of Second Circuit cases which held that the fair use doctrine had only limited application to unpublished works. The library owned the physical letters which the donor recipient gave to the library; Salinger, however, owned the copyright in the letters and was able to restrain publication of these letters by another author who was writing an unauthorized biography of Salinger. The court focused on the right of first publication to hold that publishing these unpublished letters was not fair use.
Many libraries and archives have acted as if they do hold the copyright to the archival materials they own. They often require individuals, who seek access to the items, to sign a contract that gives them permission to publish the item, such as a photograph, in their writing. If the archival collection does not hold the copyright, then it has no rights to publish the work or to grant a researcher the right to do so. Sometimes, these works have even been in the public domain and yet the library has required individuals to seek its permission before publishing the work.
Certainly, a library or archive may control access to a work in its collection. In fact, the institution may prevent access to the work for a number of reasons such as the fragility of the artifact, restrictions placed on access by the donor at the time the object was donated, or just because institution wants to restrict access. The reason most archival collections exist, however, is to make publicly available the works they house, and institutions do not want to deny the public access to the work. Therefore, the library or archives may restrict the ability to make a copy of the artifact in order to protect the item but not to prevent its publication if the work is in the public domain. Unless the library also holds the copyright in the work, it really cannot exercise the rights of the author and restrain publication. Instead, it should refer the person seeking to publish the work to the copyright holder.
B. Archival Materials on which the Library Holds Copyright
When an author, such as a novelist, donates her papers consisting of letters, published and unpublished manuscripts and research notes to a library, she may also transfer the copyright to the library or archives. The deed of gift of the physical item usually does not include the copyright. As with all transfers of ownership, the transfer should be in writing. It is possible for the author to transfer the copyright to all of his unpublished works along with the copyright in any published works in which he holds the copyright. This is the ideal situation for the library, but it is certainly not the most probable scenario. Most likely, the author assigned the copyright to the publisher when the work was published, and copyright in these works will continue to be held by the publisher. The author could, however, name the library as his beneficiary so that the library could exercise the author’s termination rights between the 35th to 40th years after the initial transfer to the publisher which would result in ownership of the copyright by the libraries after that time. For unpublished manuscripts and letters, the author may directly transfer the copyright to the library or archive and some have done so.
Why would a library or archive want to hold the copyright in these artifacts? First, the library can publish these works either in print or as a digital work. Second, it can control other reproduction and distribution of copies of the works by publishers, educational institutions and museums. Third, it gives the library a potential income stream through licensing certain uses of the works or from selling copies of the works it publishes. Many libraries and museums reproduce works of art on which they hold the copyright on T-shirts, notecards, posters, and bookmarks, and sell these in the museum or library store. Another reason a library may want to hold copyright in a work is to maximize its investment, especially if the artifact was purchased and publicize its cache as the institution that owns such a unique object.
Libraries that work with donors to acquire works on which the donor holds copyright should have legal counsel to advise them. The library should disclose to the donor about the effect of transferring the copyright to the institution. The library or archives needs a policy in place to deal with archival materials of both types: those on which it does not hold the copyright and those on which it does. The donor may place restrictions on use of the work even if the copyright is transferred to the library. For example, in order to acquire the item, often libraries and archives agree to restrictions such as not making the work available for a certain number of years. The same is true for acquiring the copyright in a work. Although normally the owner of the copyright has all of the exclusive rights, the library may agree to refrain from exercising certain rights for an agreed period of time.
One of the biggest issues for library and archival collections is how to identify, track and manage the archival items it owns. Copyright is just one part of this management task. Maintaining an inventory of the artifacts is something libraries historically do well, but identifying the rights the library has in each item and managing these rights presents new challenges for libraries and archives. This is a considerably larger issue for libraries than just archival material in their collections because it applies to materials beyond just archives. For the first time, libraries are creating systems to manage their use rights under various license agreements, so managing the ownership rights for works on which it holds copyright is just a part of this larger collection management issue.
C. Creating and Managing a University Repository
Academic libraries are being asked to create and manage university repositories which will consist of digital copies of works by faculty and researchers on their campus. Institutional repositories are defined as “digital collections capturing and preserving the intellectual output of a single or multi-university community.” Individuals within the institution produce working papers, technical reports and other forms of scholarly work which may or may not be published, but in the prepublication stage, the work has considerable value to other faculty members and researchers, as well as to the institution. In fact, institutional repositories can serve as a complement to traditional methods of scholarly communications. More importantly, in certain disciplines such as science and technology, these works are sometimes referred to as “gray literature” because they are difficult to locate and hard to manage and preserve. These works are being stored digitally, managed by university libraries and made widely available. If the work is later published, the faculty member may request that the work be removed from the repository, or the faculty member’s publisher may insist that the work be deleted from the repository.
Faculty members at academic institutions all over the world are posting their research online, most often on their own websites, but there are also departmental websites and disciplinary repositories. Researchers want to share the results of their work and many believe that making their work available online is the best way to expand exposure to their work and to stimulate conversation and discussion about their work by others. There are also benefits to a college or university in creating such repositories. “by capturing, preserving, and disseminating a university's collective intellectual capital, serve as meaningful indicators of an institution's academic quality.” An institutional repository is primarily a digital archive of faculty works, but could also include works by researchers, staff and even by students. A repository thus described differs from other digital libraries which tend to be subject or thematic in nature. Instead, “… institutional repositories capture the original research and other intellectual property generated by an institution's constituent population active in many fields. Defined in this way, institutional repositories represent a historical and tangible embodiment of the intellectual life and output of an institution.”
An institutional repository could be made up of several parts: (1) teaching materials to include syllabi, examinations or other materials that the faculty or department wishes to preserve; (2) student works such as papers, projects, and electronic portfolios; (3) works about the institution such as annual reports, histories, planning documents, etc.; (4) computer programs; (5) data sets and (6) visual works such as videorecordings, photographs and art works. In other words, virtually any digital work that a university wants to preserve and make available can be placed in the institutional repository.
What is the library’s role in creating and maintaining such a repository? Clearly, its role is more than custodial and evinces a desire to help mold the future of scholarly communications from traditionally published works to more dynamic works. This is an expansion of the traditional role of libraries but one which university and college libraries are uniquely qualified to fill. Faculty will likely dedicate themselves to the content layer of the repository, but someone has to manage the technical and organizational aspect, and that is likely being the university library. Libraries can be expected to: (1) provide document preparation expertise which includes document format control, and archival standards; (2) help and encourage authors to contribute their research to the repository; (3) provide expertise to increase access to and usability of the data through a means such as metadata tagging, authority controls, and other content management requirements; and (4) establish guidelines for the campus community on what works should be deposited and how to accomplish this. Certainly, the individual authors would own the copyright in their own contributions to the repository, but the collective work or database will surely possess sufficient originality to qualify for copyright protection on its own. Will the library own the copyright in the collective work? The institution? If the academic library invests the intellectual capital to create, maintain and make the contents of the repository available, it likely would hold any rights in the repository unless, of course, the college or university itself claimed ownership of the copyright.
IV. LICENSED WORKS
A. The Library as Licensee
Although some digital works such as music CDs and motion pictures on DVD are available for outright purchase, the majority of digital works to which a library has access are licensed to the library. For works that are not licensed, it is possible that the copyright holder would transfer ownership of the copyright to the library also, but it is highly unlikely. Since most digital works are licensed, ownership of the copyright becomes secondary to the license agreement. There are serious issues concerning access and the ability of libraries to negotiate licenses that serve the needs of their users, but copyright ownership is seldom at issue.
What is increasingly difficult for many libraries is the management of the various license agreements they sign. There is little uniformity among vendors and some grant access only to students, faculty and staff within the institution, while others permit access by any “authorized borrower.” For many state-supported institutions, this includes anyone who comes into the library and registers as a borrower. For the legal databases, LEXIS/NEXIS and Westlaw, use under the law library’s contract is restricted only to that school’s enrolled students, faculty and staff. Moreover, there are also use restrictions: the legal databases may not be used other than for educational purposes, and a law school could lose its license if it permits practicing attorneys, judges and other members of the legal community to access the databases under the law school contract.42 For other databases, there may be price variables for types of uses or users, different contract lengths.
Academic libraries are working hard to manage these licenses. All of the major library associations agreed on a set of licensing principle several years ago which include recommending that all license agreements be clear about what rights are provided under the license. Agreements also should respect the intellectual property rights of both parties and not hold the licensee liable for acts of third parties if the library takes reasonable steps to prevent such behavior.43 The issue of licensing is of such concern to libraries that a website and a listserv have been created for librarians to share information about the topic.44
There are also significant issues for libraries regarding bibliographic control of licensed works. Creating links in the online catalog and in electronic reserve systems are important issues, but they are outside the scope of this article.
B. Libraries as Licensors
Even academic libraries create digital works that might be licensed to other libraries. A few years ago the Law Librarian of Congress proposed that the Law Library produce databases of foreign primary legal materials such as registers, gazettes and other statutory and regulatory materials by country. This material is very difficult to locate for some countries, and the project had a great deal of interest initially from the academic and research library community. The Law Library of Congress would license use of the database and use those funds to create the database for the next country. The project was not approved due to a regulation that prevents the Library of Congress from selling works it creates.45 The idea that a library may create and license a valuable work is not so far fetched, especially considering that museums create databases of digital images from their collections.46
V. CHANGING MODELS OF SCHOLARLY COMMUNICATIONS
The issue of copyright ownership of scholarly works is a critical issue for academic libraries as they struggle to cope with both the escalating costs and increasing rate of publication of books, journals and other materials. The assumption is that if faculties own their copyrights, or at a minimum, negotiate increased access rights to the work for their institutions, general access for education and scholarship will be improved. The entire current scholarly communications system may be broken and may even be beyond repair, but there are some creative proposals for new methods of distributing scholarly publications, in addition to the earlier mentioned institutional repositories.
Currently, there are nation-wide and international proposals for insuring that author’s of scholarly works retain as many of their rights as possible. The Association of Research Libraries (ARL) has played a major role in proposing initiatives for changing the method of scholarly communications to benefit higher education. “Create Change” is a program that was developed in response to the crisis in scholarly communications that includes the earlier discussed dramatically escalating journal prices and the increased commercialization of scholarly publishing. Both crises result in reduced access to scholarly literature by researchers around the world since academic libraries are able to acquire less and less of this literature. The primary aim of “Create Change” is to restore the system of scholarly communications to the scholarly community as opposed to commercial publishing and their shareholders. Its core goal is “to make scholarly research as accessible as possible to scholars all over the world, to their students, and to others who might derive value from it.”47 “Create Change’s” strategies are to: (1) shift the control of scholarly publishing away from commercial concerns and back to scholars; (2) influence scholarly publishers to have as their number one goal the widest possible dissemination and to include pricing policies that are budget conscience to libraries and scholars; (3) create alternatives to commercial publishing and (4) foster changes in the faculty peer review system that will promote greater availability.48
A. Open Archives
Another important solution is referred to as the open archives movement. Several examples of open archives projects are described below.
1. Los Alamos e-Print Archive
The Los Alamos e-Print Archive is a tremendously successful project to upload scientific articles in various versions and make them freely available on the web. Begun by Paul Ginsparg in 1992 at Los Alamos, the main site has recently moved to Cornell University.49 The original goal was to design a quality-controlled archive and distribution for physics research. The project has now expanded to include mathematics and computer science research articles. One unique feature of the e-Print Archive is that scientists can post successive drafts of their papers. This creates the ability for scientists around the world to comment on the paper and research results, facilitates collaboration and improve the quality of scientific information. It has attracted many of the top physicists in the world and has approximately two million visitors per week. Attempts to duplicate the success of the e-Print Archive have run into copyright problems, but have resulted in some of the projects described below.50
2. Budapest Open Access Initiative
The Budapest Open Access Initiative (BOAI) arose from a meeting of the Open Society Institute in December 2001. The aim of the gathering was to hasten the progress of international efforts to make research articles in all academic fields freely available on the Internet. The result was the BOAI which represents statement of principle, strategy and commitment. Signatories to the BOAI include hundreds of individuals and organizations worldwide who represent researchers, universities, laboratories, libraries, foundations, journals, publishers, learned societies, and other individuals involved with kindred open-access initiatives.51
The BOAI states that those works that "scholars give to the world without expectation of payment" should be freely accessible online without cost to the user. The BOAI recognizes that scholarly authors have rights and concerns about open access. It suggests that the only constraint on reproduction and distribution of these scholarly works should be author control over the right to be properly acknowledged and cited. A January 2002 BOAI press release contained the following statement:
An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment, for the sake of inquiry and knowledge. The new technology is the Internet. It makes possible the world-wide electronic distribution of the peer-reviewed journal literature and completely free and unrestricted access to it by all scientists, scholars, teachers, students and other curious minds. Removing access barriers to this literature will accelerate research, enrich education, share the learning of the rich with the poor and the poor with the rich, make this literature as useful as it can be, and lay the foundation for uniting humanity in a common intellectual conversation and quest for knowledge.52
Two strategies would be followed. The first is called “self archiving” which acknowledges that scholars need tools and assistance to deposit refereed articles in open electronic archives. Second, alternative journals would be launched that are committed to open access.53
3. Public Library of Science
The Public Library of Science focuses on open access to scientific and medical literature around the world. It is a non-profit organization of scientists who believe that open access will benefit scientific progress, education and the public good. The project foresees the establishment of public libraries of science that will both archive and provide access to the content of scientific articles. Further, it will encourage new ways to “search, interlink and integrate the information that is currently partitioned into millions of separate reports and segregated into thousands of different journals, each with its own restrictions on access.”54
Scientists around the world have been circulating an open letter urging publishers to allow research reports that have appeared in their journals to be distributed freely by these online public libraries of science. The response from the international scientific community is reported to have been “overwhelmingly positive,” and the open letter has now been signed by 30,499 scientists from 182 countries. The Public Library of Science reports that some publishers have begun to provide increased access to published research, but not to the extent that it advocates. Thus, it believes that it must assume a publication the role and has established a nonprofit publisher “operated by scientists, for the benefit of science and the public, and will begin publishing journals in the second half of 2003.”55 The peer reviewed articles will be immediately available online, free of charge, with no redistribution or reuse restrictions. The first journal, PLoS Biology, is scheduled to begin publication in October 2003 and the second, PLoS Medicine, in 2004.56
B. Library and Library Association Sponsored Projects
The Scholarly Publishing and Academic Resources Coalition (SPARC) is an alliance of universities, research libraries, and organizations that was begun in June 1998. SPARC was created as a response to problems, even dysfunction, in the scholarly communications system that have significantly harmed scholarship and crippled libraries in their abilities to ensure the availability of scholarly journal literature. The purpose of SPARC is to serve as a catalyst for action to help create systems that expand the dissemination of information and use of that information in the networked world. SPARC focuses on “enhancing broad cost-effective access to peer-reviewed scholarship” by incubating competitive alternatives to high-priced commercial journals, and publicly advocating fundamental changes in both the system and the culture of scholarly communication.57 Today, membership in SPARC numbers approximately 200 institutions in North America, Europe, Asia and Australia and has already initiated new journals58 that comport to the mission of SPARC and has encouraged new nonprofit players to enter the market. Associations such as the Association of American Universities, Association of American University Presses, Association of College & Research Libraries, the Big 12 Provosts, and the National Association of State Universities & Land Grant Colleges, have endorsed SPARC.59
There is also a European SPARC called SPARC Europe which is an alliance of European research libraries, library associations and research institutions that support increased competition in scientific journal publishing. It is very similar to the American SPARC, but it is tailored to the European research and library communities. A collaborative effort between the two organizations is planned.60
2. PubMed Central
PubMed Central is a digital archive of life sciences journal literature managed by the National Center for Biotechnology Information (NCBI) at the U.S. National Library of Medicine.61 It was established to provide barrier-free access to primary research reports in the life sciences. Additionally, it serves as a host for scientific publishers and organizations to archive, organize and distribute their research articles at no cost to the user. The archiving of this material will guarantee availability to researchers in the future, even though copyright in the individual items remains with the publisher, author or the society. Both peer-reviewed and non-peer reviewed reports and articles are accepted, but the contents are clearly marked to indicate the peer review status of an item. PubMed Central also has relationships with foreign learned societies and repositories. Any journal currently indexed by the major abstracting and indexing services is eligible for inclusion in PubMed Central, along with those that have on their editorial boards at least three scientists who hold research grants from major funding agencies. The initial cost of 2-3 million dollars annually was to be absorbed by the National Institutes of Health. PubMed began accepting journal articles in January 2000.62
C. Open Licenses
There are prototypes of open licensing that could be used or adapted for the academic world in order to make works produced within an institution more widely available both on the campus and beyond.
1. Creative Commons
The Creative Commons,63 is a nonprofit organization that is developing alternatives to the type of “grab” of rights that many commercial publishers and producers have claimed. The idea is to establish alternative approaches to licensing that will produce income for the copyright holder, but will also encourage contributions to the public domain. The assumption is that there are many creators who will welcome the exposure and benefits they will gain from putting their works in the public domain.64 Many academic and scholarly authors have expressed interest in putting their works into the public domain or, at a minimum, making them widely available through no-cost licensing.
The Creative Commons has developed prototype or “custom licenses” which should be available in the fall of 2003. The online forms or template can be filled out by creators with or without the assistance of an attorney. Available at no cost, creators will be able to select from a variety of license terms to ensure retention of copyright for the creator who might grant broad rights to the public to reproduce, display, and distribute. Other terms might include requiring proper credit for using the work, and not permitting derivative works.65
2. Open Audio License
The Open Audio License is available through the Electronic Frontier Foundation,66 which recognized that the sharing of information and works on the web generally benefited both the creators of these works and the public. It benefits creators by enabling them to build on others ideas. Based on the open source software initiative, the Open Audio License provides the same type of freedom and access to music. “It allows artists to grant the public permission to copy, distribute, adapt, and publicly perform their works royalty-free as long as credit is given to the creator as the Original Author.”67 The purpose is to foster collaboration so that artists can build on each other’s works. It benefits the public because it makes available to them new music, permits them to connect directly with artists as well as encouraging the distribution of music. This will add value to the musician’s reputation.68
3. Free Art License
A French group that permits users to use works of art freely by copying, distributing and transforming the artworks while still respecting the rights and interests of the original artist developed the Free Art License. According to the website, the license does not ignore author’s rights, but instead reformulates them to make it possible for the public to use creative works of art. Current copyright law restricts public access to works of art; the goal of the Free Art License is to encourage such access. The license has several goals which are to make works of art accessible, to authorize use by the greatest number of people, and to make it available to amplify the possibilities of creation. Thus, the license encourages the continuation of experimentation that many contemporary artists undertake. “This is the essential goal of this Free Art License: promoting and protecting artistic practices freed from the rules of the market economy.”69
This article has focused on common issues involving academic libraries and copyright ownership. There are certainly many other situations that involve an active role on the part of the library in producing works, such as videotaping the lectures of faculty members at the behest of the teacher or the school. While the faculty member owns the copyright in the lecture if it is fixed on the tape with her permission, what similar tapes that make up a collection in the library? Is there a copyright in the collection as a whole? Should libraries develop guidelines dealing with the copyright issues and management of such a collection?
Policies play a critical role in most libraries, but the reexamination of copyright ownership on campuses has highlighted increased need for libraries to update their policies relating to copyright ownership of works it creates, those developed by librarians and staff members within the scope of their employment, and copyright issues as they apply to archival works. Even with comprehensive policies in place, there will always be new situations that do not fall squarely within the policy, so librarians will have to continue to address the ownership issue.
An important role that the library can play is to publicize the existence of the university’s ownership policy. Over the past few years, libraries and librarians have frequently taken the lead in persuading academic institutions to address the ownership issue. The library is the one unit in the institution that is most likely to create and maintain a webpage that includes the policy and other tips for faculty members concerning copyright. Several libraries have created positions for copyright officers to assist faculty and librarians in answering their copyright questions. Additionally, libraries often sponsor programs for faculty on copyright, including copyright ownership.
 For example, at the University of North Carolina at Chapel Hill, the 2002-03 Graduate School Policies and Procedures contains the following statement:
Receipt of an approved master’s dissertation in the Graduate School is tantamount to publication, and dissertation will be available to the public in the University Library and available for interlibrary loan.
The same statement appears also for masters’ theses. Available at http://www.unc.edu/grad/pdf/handbook.pdf at section 2.34 (last visited November 9, 2003).
 The ISBN is a unique 10-digit number assigned to books prior to publication that helps track works through the publication and sales process. Begun in Great Britain, this system is now used world-wide for books and other monographic works. Each version of a book gets a unique ISBN so there is no confusion between the hardback version, the paperback, and foreign language translations. In the United States the numbers are assigned by R.R. Bowker, and in other countries by a national book numbering agency. The administration of the international system is handled by the International ISBN Agency in Berlin. See International Encyclopedia of Information and Library Science 237 (1997).
 “The keyword method will look for names, words or phrases in almost all fields of the record (author, title, subjects, contents, notes, etc.).” Library Tutorial, available at http://www.nv.cc.va.us/library/tutorial/keyword.htm (last visited Jan. 19, 2004).
 Harvard Law School Library, Author-Title Catalog, 1817-1981.
 499 U.S. 340 (1991).
 Id. at 359-60.
 Online Computer Library Center (OCLC) is a nonprofit membership organization offering computer-based services and research to libraries, educational organizations, and their users. OCLC operates the OCLC Cataloging PRISM service for cataloging and resource sharing, provides on-line reference systems for both librarians and end-users, and distributes on-line electronic journals. .See HyperDictionary at http://www.hyperdictionary.com. In the early 1980’s, OCLC registered the copyright on the OCLC database. It was highly controversial among OCLC members and there were many angry letters from OCLC member libraries objecting to OCLC’s claim of copyright since it is the member libraries that contribute the cataloging records to the database. The president of OCLC claimed that the purpose of registering the copyright in the database was to protect it from misappropriation by nonmembers and other database producers. Over the years, the copyright status of the database ceased being controversial. See generally, Marilyn Gell, Copyright in Context: the OCLC Database, 113 Libr. J. 31, July (1988).
 17 U.S.C. § 101 (2000).
 See CCNV v. Reid, 490 U.S. 730, 737-51(1989) for a discussion of the factors courts use to determining whether a work is a work for hire.
 The mission of the Kathrine R. Everett Law Library at the University of North Carolina has four separate statements, one of which is to contribute to the development and publication of knowledge in law, library science, legal research and law librarianship. “To foster research, education, and leadership in law librarianship, legal research and information and library science.” See Mission Statement, at http://library.law.unc.edu/about_the_law_library/mission_statement.html last visited (Jan. 19, 2004).
 Even Library Journal requires a transfer of copyright. One major exception is Law Library Journal (LLJ) which for several years has required transfer of only the right to reproduce and distribute the article in LLJ. All other rights remain with the author, including the electronic rights. If the author does not want the copyright, it is owned by the American Association of Law Libraries.
 It is likely that materials for such courses would have been produced within the scope of the librarian’s employment.
 17 U.S.C. § 101 (2000).
 Over the years, the author has received of a variety of requests to advise libraries caught in such situations.
 These might include permission for the reproduction and distribution from the copyright owner, reproduction of a work produced by an author who has been deceased for 50 years under § 108(h) and risk assessment.
 See Bridgeman Art Library v. Corel, 36 F.Supp. 2d 191 (S.D.N.Y. 1999). Although the works at question in Bridgeman were transparencies of public domain works, the court held that creation of the transparencies did not have enough originality to qualify the transparencies for copyright. By analogy, creating the digital version of work has the same problems.
 Feist, 499 U.S. 340 (1991). This case involved copyright in the white pages of a phonebooks which had long been assumed to be protected by copyright. The Supreme Court held that the white pages failed to meet the originality requirement, specifically that it lacked the spark of creativity required by the copyright clause of the U.S. Constitution.
 Id. at 348.
 Id. at 362.
 See, Documenting the American South, University of North Carolina at Chapel Hill Academic Affairs Library, at http://docsouth.unc.edu/neh/neh.html (last visited Jan. 19, 2004). “Beginnings to 1920" documents the individual and collective story of the African American struggle for freedom and human rights in the eighteenth, nineteenth and early twentieth centuries. When completed, it will include all the narratives of fugitive and former slaves published in broadsides, pamphlets, or book form in English up to 1920 and many of the biographies of fugitive and former slaves published in English before 1920.
 For example, Duke Law School maintains the Public Law and Legal Theory Working Papers Series which contains papers of its faculty members online at http://www.law.duke.edu/fac/workingpapers.html (last visited Jan. 19, 2004).
 811 F.2d 90 (2d Cir. 1987).
 Others cases included New Era Publications Int'l v. Henry Holt and Co., (New Era I), 873 F.2d 576 (2d Cir. 1989) and Wright v. Warner Books, 953 F.2d 731 (2d Cir. 1991). In 1992 Congress amended § 107 to make it clear that unpublished works were subject to fair use in a similar manner as published works. Courts are directed to apply the four fair use factors to unpublished works as well.
 Salinger, dupra note 25, at 95-6.
 The issue is so complicated that most library schools offer master’s level courses in archives management.
 See infra Section IV.
 Roy Tennant, Institutional Repositories, 127 Libr. J. 28, (2002).
 Johnson, supra note 30.
 See generally id.
 Crow, supra note 31.
 In fact, the major problems are authentication of licensed borrowers since not all licensors require the same level of authentication and insuring that students who are off-campus for certain internships and other off-campus course work have access along with students enrolled in distance education courses with the institution.
42 The license agreement for law schools from Westlaw includes the following restriction: “’Authorized use’ shall mean use solely for educational purposes by subscriber’s faculty, administration and staff (“Personnel”) and students. Any other use is strictly prohibited…Subscriber shall be responsible for all access to and use of Westlaw…whether or not subscriber has knowledge of or authorizes such access and use.” The Lexis/Nexis contract for law schools contains similar language, “Authorized User: MDC will issue to Subscriber identification numbers for access to and use of the Services by full time librarians….If subscriber becomes aware of any unauthorized use it will notify MDC immediately.” Moreover, the legal database vendors have contacted schools and threatened to cancel the contracts when they became aware that the service was being used by students for noneducational purposes.
43 Associations of Research Libraries, Principles for Licensing Electronic Resources, (Jul. 15, 1997), at http://www.arl.org/scomm/licensing/principles.html.
44 See Yale University Library – Council on Library & Information Resources, LIBLICENSE, Licensing Digital Information, a Resource for Librarians, at http://www.library.yale.edu/~llicense/index.shtml (last visited Jan. 19, 2004)
45. Interview with Professor Kathie Price, Director of the Law Library, University of Florida, and former Law Librarian of Congress.
47 Association of Research Libraries, About Create Change, at http://www.arl.org/create/faculty/intro/aboutcc.html (last visited Jan. 19, 2004).
48 48 Id.
50 See David Bollier & Tim Watts, Saving the Information Commons: A Public Interest Agenda in Digital Media, New America Foundation, at 12-13, (2002) available at http://www.newamerica.net/Download_Docs/pdfs/Pub_File_866_1.pdf.
52 Budapest Open Access Initiative, Press Release, available at http://www.carl-abrc.ca/projects/scholarly/boai/press_release-e.htm (last visited Jan. 19, 2004).
53 Funding for the BOAI comes from the Open Society Institute funded by philanthropist George Soros. Id.
59 Scholarly Publishing and Academic Resources Coalition, supra note 57.
62 See Judith Axel Turner, Why Barrier Free Access to Reports in the Life Sciences Will Be Good for Science, IMP Magazine, Information Insights, at http://www.cisp.org/imp/november_99/11_99turner-insight.htm.
66 The Electronic Frontier Foundation (EFF) was created to defend our rights to think, speak, and share our ideas, thoughts, and needs using new technologies, such as the Internet and the World Wide Web. EFF is the first to identify threats to our basic rights online and to advocate on behalf of free expression in the digital age. Electronic Frontier Foundation, About EFF, at http://eff.org/about/ (last visited Jan. 20, 2004).
68 See EFF Open Audio License, available at http://www.eff.org/IP/Open_licenses/20010421_eff_oal_1.0.html (last visited Jan. 20,2004).
69 See CopyLeft Attitude, Free Art License, available at http://www.cicv.fr/publications/copyleft/licensegb.html#Anchor-Preamble-49575.