The full version of Lesley Ellen Harris' article is available in the upcoming issue of the Intellectual Property Journal (IPJ).
In most organizations, if you have a legal question you head over to the legal department. When someone has a copyright question, however, they often head over to the library or information centre to discuss it with the librarian or information professional responsible for copyright and licensing issues. When did this shift occur, and why?
The reasons that the role of answering copyright and licensing questions has fallen to librarians are as myriad as the facets of copyright. In librarians’ primary function as guardians of content, from research materials to music and image collections, much of what librarians routinely encounter consists of copyright-protected works.
Because librarians have historically been equated with assistance, research, and answers, it is a good fit to turn to librarians for information and help when evaluating the legal aspects of works for potential use. In fact, many organizations now have designated positions with such titles as Copyright Librarian, Licensing Librarian, and Copyright Officer. In educational institutions this role often falls within the position of the Scholarly Communications and Copyright Librarian.
The fact that librarians are now the first stop for copyright and questions relating to licensing digital content in libraries raises the question of whether librarians are providing legal advice. Their role (see next paragraph for specifics) is to recognize copyright issues and to provide information. Librarians can direct patrons and researchers to relevant material about copyright law and licensing but ultimately they should be providing the information without interpreting it. Many libraries now have written copyright policies or guidelines which set out specific amounts of copying allowed. These policies and guidelines are usually prepared by lawyers or at least vetted or finalized by lawyers. These are great tools as it provides libraries with concrete direction and veers them away from providing legal advice.
Copyright Issues and Responsibilities
Daily activities of educators, librarians, archivists, and other information professionals involving copyright issues include photocopying and scanning of articles, copying software or offering it for multiple users, and downloading or incorporating music in presentations and in course management systems. Negotiating permissions and licenses and interpreting licensing agreements are routine aspects of copyright and permissions management; depending on the position, understanding foreign copyright laws and the implications of international copyright treaties are also integral to this management function.
Copyright law is a complex and nuanced field. While law students can specialize in intellectual property, librarians have no such specialization or educational individuation. Someone who chooses to pursue a Masters in Library and Information Science (MLIS) degree generally can begin with an undergraduate degree in any field. Among the traditional topics on the MLIS track are collection development, cataloging, reference, and archiving; and with the inclusion of the “information sciences,” an MLIS degree has widened to include computer science topics like web and database design, too. Few information schools offer courses in copyright and licensing. As a practical matter, professionals in this field may have extensive experience managing copyright issues, and negotiating permissions and licenses due to the nature of their position within an organization.
Copyright law is no longer just the domain of lawyers. While there is a definite and important role in copyright for lawyers, the role of librarians has and will continue to increase when it comes to the day-to-day management of copyright law, and there’s a balance between what lawyers may do and what librarians may do.
This balance suggests the need for collaboration. Sometimes the teaming up of lawyers with librarians and information specialists may be the best strategy. For example, a librarian may negotiate the terms and conditions for a licence for digital content; the lawyer however may review the legal language in the licence agreement. A librarian may draft copyright guidelines for routine uses of content which are in turn vetted by an organization’s lawyer; or a librarian may deal with simpler questions relating to fair dealing but a lawyer may be consulted when the organization receives a notice from a content owner that his content was used without authorization.
Lesley Ellen Harris is a lawyer, author, educator, and Osgoode alumnus (’85). Her book, Canadian Copyright Law, Fourth Edition, was recently published by Wiley. You can read more of Lesley’s posts at copyrightlaws.com and at www.canadiancopyrightlaw.ca.