Section 512: University and Research Libraries as Rightsholders | Authors Alliance

"In most cases and for most of the published research Duke produces, we aim to disseminate these works with no direct financial return; no royalty. If possible, our authors generally want no financial barrier to stand in the way of engagement with their research, operating under the idea that more and faster progress will be made without those barriers. In many cases, we find ourselves licensing around the controls that copyright law automatically provides. For example, more than ten years ago, Duke Faculty voted to adopt an institutional open access policy that provides for free, widespread distribution of research articles that Duke faculty have authored....

Given our interest in widespread dissemination of ideas, for research and academic work our strong preference is a system that is biased toward keeping content up online unless there is strong evidence that an infringement has occurred. The current notice and takedown system does not always accomplish this goal....

First, for some academic works, the ownership of rights is far from clear. Although authors are the holders of those rights initially, they are often asked to license them away at least in part through publishing contracts that are confusing and vary significantly from journal to journal and which can change with some frequency. As a result, some academic authors are unsure of whether they are legally permitted to share their own work online under the terms of their publishing agreement. Many research articles are also subject to pre-existing licenses that attach automatically upon creation—for example, at Duke under our Open Access policy—which provide that authors and their institutions retain certain rights to share and reuse their work. My experience with takedown requests we receive at Duke is that publishers do not take into account pre-existing open access licenses even though their existence is widely known....

Second, and perhaps the most important thing I can convey, is how important fair use is for research, teaching, and for libraries that support those functions....

Section 512 does not explicitly address how fair use factors into the notice and takedown process....[I]n practice we know that in many instances automated content identification systems are the first method of assessment, and they do not handle fair use assertions well...."