The Johns Hopkins Gazette: December 1, 1997
Dec. 1, 1997
VOL. 27, NO. 13


Electronic Era Spawns Copyright Quandaries

MSEL director Jim Neal examines database laws and other issues affecting academia

Christine A. Rowett
Homewood News and Information

Johns Hopkins Gazette Online Edition

As director of the Milton S. Eisenhower Library and president of the Association of Research Libraries, Jim Neal is active in the national arena in the areas of copyright law and scholarly publishing.

Last month, he testified on behalf of five American library associations before a congressional subcommittee studying the Collections of Information Antipiracy Act. This proposed legislation seeks to expand protection of databases, particularly in the digital environment. Though its supporters have called the bill "a complement to copyright," Neal addressed the absence of documented need for such new protection, the overall inadequacies of the legislation and the availability of existing laws to protect such works.

"We don't have sufficient experience in the digital and networked environments to begin to write such far-reaching new laws," he says. "The technology is constantly shifting." A staunch defender of the quality, integrity and wide availability of academic materials, Neal recently sat down to discuss some of the complicated issues bundled up in copyright laws, which have been defined as "the right of authors to control the reproduction and use of their creative expressions" or, as the U.S. Constitution advances, "to promote the progress of science and useful arts."

Are universities protected under copyright and fair use laws?

Yes, the [1976] copyright law does extend to educational institutions and libraries certain fair use rights, or exceptions and limitations to copyright protection. These fair use provisions enable certain activities to proceed in the interest of education and research.

For example?

Faculty are able to make copies for class use. Libraries are able to duplicate materials and make them available on course reserve, lend and borrow books and photocopied articles with other libraries, and make preservation copies of items that are deteriorating.

How about Hopkins authors and academic material?

All material that's published, and much that's not, is protected by the copyright law. The challenge we face in the university is that faculty who write books and prepare research papers generally sign over ownership rights to publishers. The libraries on the same campus are then faced with having to purchase, at often extraordinarily high prices, the intellectual output of the resident researchers and often with significant restrictions on how the publications can be used.

Authors don't own their copyrights?

Typically, in the higher education community, individual faculty aren't expecting significant income from their published works. They're seeking to share information with colleagues, to preserve their ideas and research findings and to support their advancement as faculty members. There is a tradition, if not a requirement, that the copyright ownership be assigned to the publisher. Universities, in their intellectual property policies, have supported this activity, and have not taken a financial or ownership interest in this material. There is an interesting debate taking place across higher education as more faculty are producing software and courseware, and universities are seeking to assert ownership of such intellectual property, largely because of the marketability of such products.

Who does own it, in your opinion?

We need to be sure that we're protecting faculty and researcher rights, but we also need to be sensitive to the investments that universities are making in the infrastructure that supports the work of faculty. As in most copyright arenas, there needs to be balance, between the legitimate rights and interests of faculty and universities. This is the core issue in the management of intellectual property: How do we achieve a balance between the interests of information producers and copyright owners and the interests of information consumers?

Why is that so important?

It's very important that individuals and companies investing energy, time, funds and creativity in the production of new information have the right to protect their intellectual property. We don't want someone to freely copy and distribute the work of another and to profit from it.

Is that the distinction? I'm not allowed to profit from it, but I should be allowed to learn from it?

Yes, in my view. Guidelines were developed as a result of the 1976 copyright law called the fair use guidelines. These define how schools and libraries, for example, can use copyrighted materials to support education and scholarship. They were agreed to by the publishing, education and library communities, and have been in place for 20 years. Recent attempts to update the guidelines to reflect the electronic environment and to extend them into new areas such as distance education have not been successful.

Is it feasible to apply copyright laws that exist for print to electronic materials?

I believe that it is feasible, as there is not a clear information format bias in the current law. Many argue that the 1976 law, either through legal interpretation or modest revision, can be made to work in the digital environment. But as we modify the law, we must make sure that the exceptions and limitations that support the work of education and libraries are not violated, and that the fair use provisions are retained. There is a great deal of pressure to normalize copyright laws internationally. Given the global nature of the Internet, intellectual property issues are increasingly debated in international forums. I attended the World Intellectual Property Organization treaty meetings in Geneva last December as a member of the U.S. delegation. This was a very important event, attempting to forge agreement in the world community on the legal framework for copyright under the impact of rapidly changing technology.

Did it succeed?

There was agreement on two treaties, one dealing with sound recordings and one integrating electronic information into basic copyright law. Those treaties are now being considered within the legislatures of the countries around the world. As the implementing legislation had been introduced in the U.S., there are concerns that the balance between the interests of copyright owners and consumers could be upset. There are also special provisions on copyright management systems and new liabilities and penalties for using copyrighted information without authorization that need to be monitored carefully. A third treaty on database protections was not considered because of substantial international opposition.

The database legislation that's been introduced has been opposed by the scholarly and science communities?

When database protection or, as it was called, antipiracy legislation, was introduced in Congress in May 1996, the library, higher education, scholarly and science communities rose up in vigorous opposition. The basic message was, it won't work, it's not necessary, and it will severely limit the work of the research communities. It is noteworthy that many commercial information organizations also voiced strong disagreement with the legislation. As a result, the legislation died.

A Supreme Court decision several years ago, Feist Publications vs. Rural Telephone Service, said that sweat of brow--that is, simply taking a set of data and moving the information around, like a telephone book--does not constitute a copyrightable work. You have to demonstrate some creativity in the organization or content of the information being provided. The proposed database legislation in the U.S. is seeking to set aside this court decision.

It seems very subjective.

It is. That's why we have courts to deal with what is often a very ambiguous area. Another complicating factor is that the European Union has recently passed a directive that requires all of the member countries to pass legislation protecting databases. So there is great concern in the United States that if we don't pass similar legislation, we will be vulnerable economically in Europe with American database products. European databases will be protected, and ours will be subject to abuse.

Why are you opposing the database legislation?

There has been no demonstrated need for the legislation. Look at the robustness and economic health of the U.S. database publishing industry. The terms of the legislation must be more clearly defined. The protection of fair use must be included. We must be concerned about the retrospective nature of the provisions and the absence of any time limits on protection. And we must protect information in the public domain, such as government information.

Is the notion of balance included in the legislation that passed in Europe?

There are two important distinctions between the copyright traditions in Europe and the U.S. Copyright in the U.S. has constitutional roots, and our laws include strong fair use provisions. Neither is the case in Europe. In the U.S., we have the existing copyright law, and we have contract law that should be sufficient to protect the interests of database producers. Technology is also being developed that will help to manage legitimate use of database information.

So what are the serious consequences for consumers and higher education?

Potentially, we could face having to pay for access to government information, files of data that are now distributed freely and for which we have already paid through our tax dollars. This public domain information must be protected for use. We could see individuals and companies legally applying onerous access fees for databases and restricting fair use of such information.

What are the arguments of those who support this legislation?

They feel that there are substantial potential abuses, particularly with networked information, and that new protections of their investments are needed.

Can you summarize the battle?

Producers of information want to maximize their profits, and they want to limit the ability to use and re-use information without payment. The interests of universities and libraries are to be able to use this information responsibly within the law and to advance education and research. We must protect the fair use rights of library users, and we must guarantee that they are not set aside because information is delivered in an electronic format.

How do you consider future advances in technology when developing legislation now?

The first requirement is that we clearly demonstrate the need for new laws, and second, we draft language that is sufficiently flexible to adapt to technological change. The library and education communities, along with some commercial interests, have been working with key congressional staff to draft such new copyright legislation, and this has produced the Boucher bill and the Ashcroft bill. Both represent legislation that advances the legal framework for copyright and protects the interests of education and library users.

Why does this issue interest you personally?

Copyright is at the core of our work in libraries and in the university. It is bundled up in the classic confrontation between big business and the consumer or common person, if you will. Libraries have served as access points to information for people in a community. We seek to maximize the availability of information and to create barrier-free access. We acquire information on behalf of our communities and invest the institutional resources in ways that no one individual member could afford. As a community resource, law does give us certain rights and abilities that are not enjoyed by individuals.

Do you see yourself as a protector of this community resource?

Yes, that is what I was hired to do here at Hopkins, to make sure that the information needs and interests of this community are protected and advanced. If legislatures, courts or corporations threaten the interests of our library users, I have to take a strong position to oppose such actions.

Now this is not a simple matter. We are not only consumers of information but also very active producers of information in the university. When we develop and distribute intellectual property, we have an interest in its appropriate use. A balanced approach is what enables us to manage this very schizophrenic situation.

You're on both sides of the fence, aren't you?

In many ways, yes. Libraries and universities are advocates for the protection of the ownership and financial interests of copyright owners. At the same time, we need to use information to support education and research. That's why the current copyright law is so effective--it recognizes this conflict and achieves a healthy balance.