Copyright Law : yes, no, maybe?

Citation

Krueger, J.M. (2003), "Copyright Law : yes, no, maybe?", Library Hi Tech News, Vol. 20 No. 10. https://doi.org/10.1108/lhtn.2003.23920jaf.001

Copyright Law : yes, no, maybe?

Janice M. Krueger

Like it or not libraries now find themselves in the forefront of managing a new "printing press" created by continually evolving technological advancements for making, storing, and transmitting information and artistic works. As libraries and librarians strive to do what they do best, provide information, they struggle with the complexities of the legal implications brought about by changes in copyright law and built into licensing agreements for electronic resources. Without the availability of onsite legal advice or university copyright management offices, libraries and their staff can benefit from a basic understanding of the issues to establish guidelines for daily operations. The following is a basic summation of key points and issues categorized by the legal world as important in managing the print-to-electronic aspect of library resources. Although the duplication and dissemination of sound, music, and video recordings are important for some universities, this discussion primarily emphasizes digitized print resources.

In order to grasp firmly the different issues that now confront libraries, a general review of copyright and how it is applied in the strictly print world helps. Understanding how libraries and end-users are permitted to function in this environment paves the way for understanding how libraries and patrons can function in the new. Relevant sections of copyright law for libraries are discussed, highlighting changes brought about by digital technology and the new leasing versus ownership business models. Finally, specific aspects of new legislation regarding distance learning are also addressed.

Title 17, Section 106, US Code

The law grants copyright owners a certain set of exclusive rights to their original work, such as the right to: reproduce it; distribute it by selling, leasing, or lending; create derivative works; and public performance, as in dance, drama, and song. Copyright protection varies according to the nature of the work. Creative copyright enjoys full protection of the law and is for original works, such as drama, novels, poems, and paintings. Compilation copyright offers limited legal protection and applies to such items as directories and anthologies. Derivative copyright also gives limited protection and pertains to works as suggested by the word "derivative": those based on another, such as a movie created from a novel. These points apply to all copyrighted material in a fixed medium whether print, electronic, or multimedia (Crews, 2000; Hoffman, 2001).

Title 17, Section 107, US Code

This section discusses limitations on the above exclusive rights and is sometimes referred to as the Fair Use Doctrine. Essentially, this section grants permission for use, including copying, of a work without obtaining permission from the copyright holder or paying royalties to the holder. This, however, depends on a strict set of purposes and each use must be evaluated against particular criteria, commonly referred to as factors. Generally, the purposes include using materials for education, research, teaching, criticism, and reporting. The factors to evaluate against are:

• •

  the purpose and character of use;

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  the nature of the copyrighted material;

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  the amount and substantive value of the work copied in relation to the whole work; and

• •

  the effect of the use on the value or potential market value of the work (Diotalevi, 2003; Pike, 2002).

Pike (2002) draws upon his experiences as a librarian and a lawyer and emphasizes two key points concerning fair use. The first is that this doctrine, or set of limitations of copyright exclusivity, is for the patron, usually the student or the professor, and not the library as institution, unless the library becomes a "patron" and is involved in using and copying works for a special project. Second, fair use is fair use regardless of the medium. Therefore, whether the patron makes a personal copy from a print journal or electronic database or journal is immaterial as long as the purpose is one granted by Section 107 and the factors apply.

The hard part for libraries and librarians at academic institutions materializes more frequently with professors when preparing and obtaining materials for their classes and when they want materials placed on reserves and, more particularly, electronic reserves. Password protection of the electronic reserve system makes a stronger case for fair use, but each instance needs to be reviewed against the four factors. As everyone knows, there are never absolutes when dealing with the law and each instance of fair use can be slightly different from a previous one, thereby resulting in different conclusions. Legal professionals at the University System of Georgia (Board of the Regents at the University System of Georgia, n.d.) and the Copyright Management Center at Indiana University, Purdue (http://www.copyright.iupi.edu) offer very appropriate examples and different scenarios as guidelines.

Title 17, Section 108, US Code

This section grants very strict and specific permission to libraries for duplicating materials and is, for the most part, the authority for libraries to participate in interlibrary loan. Libraries are basically permitted to make one copy of a work based upon a patron's request, which ultimately becomes the property of the patron. Most are able to do this because they are open to the public, own the requested item and make it available to the public, seek no commercial advantage, maintain limits on the number of copies made of a particular work, and either include the notice of copyright as it exists on the original or provide a statement of possible copyright applicability on the copied material. Furthermore, copies can be made for archival purposes, especially if the work becomes lost, stolen, damaged, or is rendered technologically obsolete. Digital copies are also permitted provided that they are not further digitally reproduced or made available outside the library's premises (Crews, 2000; Pike, 2002; Hoffman, 2001). Except for preservation concerns, some materials, such as musical works, are excluded from this section. Kenneth Crews, director of the Copyright Management Center, discusses and highlights the key issues for libraries regarding digital works, especially music, on the Center's Web site.

Title 17, Section 109, US Code

Sometimes referred to as the First Sale Doctrine, this grants authority to libraries to function as they do. Once works are sold, copyright owners can no longer control further resale, lending, leasing, or rental. The rights or control, in a sense, pass to the new owner, the library. Therefore, libraries can display, lend, or resale materials, such as books, pamphlets, photographs, videotapes, audiotapes, compact discs, and DVDs, that they own. Absent from the First Sale Doctrine, though, is the lending of computer programs or sound recordings for commercial advantage, although, nonprofit libraries and/or nonprofit educational institutions lending computer programs for strictly nonprofit purposes may do so if a copyright warning in included. Likewise, nonprofit libraries or nonprofit educational institutions may also lend, rent, or lease copies of "phonorecords," which could include sound recordings on tapes or CDs (Pike, 2002; Hoffman, 2001).

Underlying these two sections is a very key element: Ownership. Prior to all the technological wizardry, libraries went about their business quite efficiently, especially in the print world. Libraries bought materials, subscribed to journals, and followed established interlibrary loan procedures without question. However, in order to survive in a world embracing rapid dissemination and access to increasing volumes of information, libraries migrated to the digital environment. Along with this decision came another: Non-ownership. Libraries now enter into contractual, licensing agreements stipulating the amount of information they will receive, the timeframe for access of the information, and the types of access they can offer. The bottom line is that the benefits libraries enjoy under Section 108 cannot transfer to electronic content since ownership is nonexistent and libraries are bound by their licensing agreements (Pike, 2002). The paradox is that the technology that is permitting rapid dissemination and access to information at a patron's desktop is the same technology that is blocking libraries from sharing and preserving this information.

Digital Millennium Copyright Act (DMCA)

This was signed into law in 1998 and added, or expanded, sections of Title 17 to implement the requirements of two World Intellectual Property Organization (WIPO) treaties negotiated under the Clinton Administration. The WIPO Copyright Treaty Act and WIPO Performances and Phonograms Treaty are concerned with digital issues and copyright protection and management systems (Martins and Martins, 2002; Diotalevi, 2003). Section 1201 prohibits circumvention or disabling of technological measures or encryption devices used in digital mediums and software programs for protection against illegal copying. Also illegal is the removal of any copyright management information, such as the notice of copyright or authors of the work, particularly if the removal allowed copyright infringement. Violating restrictions to access databases could also be construed as a violation of the federal law. Copyright owners are permitted to use technological controls to protect their works, thereby basically preventing the making of an authorized copy under fair use (Crews, 2000; Russell, 2003).

As with any legislation, there are, of course, certain exceptions. Certain classes of works could be exempt if the protection devices and technologies adversely prevent non-infringing use. Also, libraries are allowed to circumvent the protections when reviewing materials for possible purchase and, likewise, encryption researchers are permitted the same latitude when testing and improving on these very devices. The DMCA upholds the rights of fair use but with added responsibilities for educational institutions and libraries to be mindful of and respect the rights of copyright owners (Crews, 2000).

There are passionate views and vigorous debates regarding the degree fair use is affected by the new legislation. The intensity of the differences depends on the profession involved and how close particular professionals work with the end user or consumer. The end result is, however, that additional layers of technology add more layers of difficulty for the everyday consumer of information and creative products and, in that sense, fair use is jeopardized.

There is an added protection for universities and libraries, which have now joined the ranks of Internet Service Providers by the very fact that most, if not all, offer Internet access along with some quite elaborate networks. Because institutions providing access can be considered as an OSP, or online service provider, under the DMCA, infringement liability is eliminated if certain conditions are met. Of course, along with the elimination of liability, come added requirements and conditions. In general, an OSP, or institution providing online access, will not be liable if the OSP:

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  only acts as a conduit and did not initiate any transmission, routing, linking, or intentional storing or altering of transmitted material;

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  utilizes generally accepted procedures for refreshing and reloading their computer network;

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  has no knowledge of or material gain from infringing material being obtained or housed in storage and the infringing act was done solely by an individual; and

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  has no knowledge of linking to sites with infringing material (Hoffman, 2001).

In order to enjoy these liability exclusions, Crews (2000) emphasizes that institutions must now designate an individual to receive copyright infringement notices, act upon any infringement notification and either remove the material or access to it, develop a policy to warn users of possible account and access termination when copyright is violated, and enhance networks with proper technological equipment and devices for prevention. He further explains that, in some cases regarding faculty research and teaching, educational institutions can be considered liable since they provide email and assistance regarding Web site development. To avoid liability, the institution, or OSP, must meet further conditions:

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  be a public or nonprofit educational institution;

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  indicate that the infringing activities were made by faculty or graduate students involved in teaching and research;

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  show the infringing activities do not include providing online access to required or suggested material for instruction;

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  have not received more than two formal notices of violation in the preceding three years for the same faculty member or graduate student; and

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  must provide notice of copyright to all network users.

Title 17, Section 110, US Code

Also known as the Teach Act, this section has been revised to handle the trials and tribulations of copyright infringement with distance education. The technology that permits distance education over the Internet is a far cry from the closed-circuit television approach of years ago. Many new opportunities for downloading, copying, and storing copyrighted material exist. Therefore, Congress felt it necessary to revise the law in light of today's enhanced technological capabilities. The good news is that there are increased benefits that have resulted from the revised legislation. The legislation increases the types of works allowed for transmission, permits reception of material anywhere as opposed to one classroom, allows students to retain and store material for designated time periods, and permits the digitization of analog works for transmission (Crews, 2002).

Although there is an overall appreciation for the new digital delivery mechanisms for distance education, many new responsibilities are associated with it. The key players, institutional policymakers, technology officials, and instructors, now all share in the strict requirements and have their own roles for distance education. Crews (2002) outlines them as follows:

1. 1.

   Institutional officials:

2. 2.
   • •

     Realize any benefits are for nonprofit institutions.

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     Create an institutional copyright policy to guide the appropriate individuals.

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     Disseminate copyright information to faculty, staff, and students, especially regarding distance education.

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     Provide additional notice of copyright to students, especially for specific classes.

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     Ensure that course content is transmitted only to enrolled students.

3. 3.

   Technology officials:

4. 4.
   • •

     Implement controls to guarantee access to only enrolled students.

   • •

     Implement technological measures that limit access to material for specific time periods and prevent further dissemination, copying, or transmission to unauthorized individuals.

   • •

     Do not use any mechanisms that can circumvent the controls already in place for copyright protection.

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     Guarantee that any copies available to students are temporary and for a specific time frame.

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     Maintain an institutional system for long term, archival storage for transmitted material that is not available to students.

5. 5.

   Instructors:

6. 6.
   • •

     Realize that allowable material now includes performances of non-dramatic literary works and musical works; performances of other dramatic and audiovisual work, but only in a reasonable portion; and displays of works in a portion that would normally be displayed in class.

   • •

     Exclude materials that are already commercially available in digital format and are marketed as educational materials and exclude any copies of performances and displays that were made by copyright violation.

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     Discretely use copyrighted material and guarantee the materials are related to course content.

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     Exclude typical class material, such as textbooks and handouts.

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     Limit digitization of analog works to only necessary portions and identify if a digital copy already exists before converting.

At first glance, librarians can feel like they have been exempted for any such concerns. In a way, they have been until the institution would like the library to store the archived distance education material or professors come looking for course material only to find that it is in one of those licensed databases. Copyright issues are a definite recurring theme in the electronic world of information. As technology becomes more sophisticated, the theme develops new variations to include digital copies of artwork, sound recordings, musical scores, and even videos. Although vast amounts of law and commentaries have been written on this topic, each scenario presents new challenges and has the potential to move the law in a different direction in the future.

References

Board of the Regents of the University System of Georgia (n.d.), Regents Guide to Understanding Copyright and Educational Fair Use, Office of Legal Affairs, Atlanta, GA, available at: www.usg.edu/admin/legal/copyright/Crews, K.D. (2000), Copyright Essentials for Librarians and Educators, American Library Association, Chicago, IL.Crews, K.D. (2002), "New copyright law for distance education: the meaning and importance of the TEACH Act", available at: www.copyright.iupui.edu/teach_ summary.htmDiotalevi, R.N. (2003), "An education in copyright law: a primer for cyberspace", Electronic Journal of Academic and Special Librarianship, Vol. 4 No. 1, pp. 1-22, available at: http://southern librarianship.icaap.org/Hoffman, G.M. (2001), Copyright in Cyberspace: Questions and Answers for Librarians, Neal-Schuman, New York, NY.Martins, C. and Martins, S. (2002), "Electronic copyright in a shrinking world", Computers in Libraries, Vol. 22 No. 5, pp. 28-32.Pike, G.H. (2002), "The delicate dance of database licenses, copyright, and fair use", Computers in Libraries, Vol. 22 No. 5, pp. 12-17.Russel, C. (2003), "Fair use under fire", Library Journal, Vol. 128 No. 13, pp. 32-4.

Janice M. Krueger (jkrueger@pacific.edu) is the Electronic Resources & Serials Librarian at the University of the Pacific Library, Stockton, California, USA.