On Scholarship:
Times, Technologies
Affect Copyright Laws

Fair use in the electronic age: Comments on intellectual property and the national information infrastructure

James G. Neal
Sheridan Director
Milton S. Eisenhower Library

Justice Sandra Day O'Connor writes, "The primary objective of copyright is not to reward the labors of authors, but to promote the progress of science and useful arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." The Clinton administration released in the fall of 1995 its report on "Intellectual Property and the National Information Infrastructure," which proposes a series of recommendations to amend the Copyright Act of 1976 (S. 1284 and H.R. 2441). This has provoked a national debate on fair use in an electronic environment and the future balance of rights between the owners and users of proprietary information. The library's perspective

The American library community has been steadfast in its affirmation of the rights and responsibilities of the users of intellectual property. The fair use provisions in the current law allow reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research. Additional provisions allow uses to further educational and library activities such as interlibrary loan, class reserves and preservation copying. The continuation of these balanced rights for information in both digital and traditional formats is essential to the free flow of information and to the development of an information infrastructure that serves the public interest and the needs of higher education.

The working group that issued the report describes the recommendations as "minor clarification" and "limited amendment" of the current law. The library community is concerned, however, that the legislative proposals and the report's focus on making the electronic environment more secure for "content providers" will lead to a fundamental undermining of well-established rights of information users. The underlying premise is that the marketplace alone will function as the best mechanism for realizing the potential of the National Information Infrastructure, and the emphasis is on the economics of copyright over the accessibility of copyrighted works.

Significant legal changes

In an incisive analysis of the report, Peter Jaszi at the American University law school identifies a series of significant changes that would characterize the proposed copyright regime:

• A new "transmission right" could convert what current law treats as non-actionable private performances or displays into potentially infringing distributions.

• Even "browsing" among documents placed on the World Wide Web might be considered a use requiring authorization from and payment to the copyright owner.

• Most on-line uses of digital information would be subject to electronic licensing and the monitoring of individual users' activities could pose a significant threat to personal privacy.

• The public's right to make "fair use" of copyrighted digital information could be severely circumscribed.

• New prohibitions against interfering with "copyright protection systems" using techniques like encryption could enable content providers to "lock up" public domain information and preclude legitimate "fair use" of protected information.

• The "first sale" doctrine, which allows owners of copies of most copyrighted works to transfer those items in any way they please, would not apply to digitally transmitted copies.

• On-line service providers, such as libraries, could be liable for all infringing material passing through their systems.

In response to these significant prospective developments, a number of library associations (American Association of Law Libraries, American Library Association, Association of Academic Health Sciences Library Directors, Association of Research Libraries, Medical Library Association and Special Libraries Association) have published and advocated a statement on "Fair Use in the Electronic Age: Serving the Public Interest." It asserts that, without infringing copyright, the public has a right to read, listen to, browse through, experiment with, view and make a copy for personal use of copyrighted material. Libraries, on behalf of their users, can use electronic technologies to preserve copyrighted materials, and provide these items as part of electronic reserve and interlibrary loan services. And educational institutions can expect that the terms of licenses will not restrict fair educational uses, that U.S. government information and other public domain materials will be readily available without restriction, and that the rights of use apply both in face-to-face teaching and in broadcasts to remote locations.

Over the years, carefully constructed copyright guidelines and practices have emerged for the print environment to ensure a balance between the rights of users and those of authors, publishers and copyright owners. New understandings--developed by all who have interests at stake--will help to guarantee that this balance is retained in a rapidly changing electronic environment.

A Highly Recommended Web Site

http://gold.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm

This copyright site managed by the University of Texas is brimming with issues and policies regarding hot topics such as distance learning, software, use of Internet materials and multimedia. It links to an interactive form for registering copyright and to legal resources on the subject. This is a good place to go to see how a large university has come to grips with copyright issues and to see what guidance they are giving faculty and staff on use of materials within the law.

Fair use: Staying on the right side of the copyright law

Modern technology makes all kinds of wonderful things possible, including endless copies of important materials. The photocopy machine, the computer and the fax have dramatically altered the way libraries do business. Copyright law, however, governs the activities made possible by these wonderful inventions.

Fair use doctrine

The 1976 U.S. Copyright Act allows copying by individuals under a doctrine known as fair use. Four factors are considered in the determination of whether the use made of a copyrighted work is a fair use:

1. Nature of use. An individual is allowed to make one copy for private study, scholarship or education without obtaining permission from the copyright owner. Under no circumstances may the copy be used for commercial purposes.

2. Works that may not be copied. These are materials that are meant to be consumed when used, such as test answer forms or workbooks.

3. Portion to be copied. The individual is entitled to copy only a small portion of the work as related to the whole. Copying one page or article from a thick journal or one chapter from a large book may be fair use, while copying one page from a two-page newsletter would be a violation.

4. Effect of copying on market value. Copying instead of subscribing to or purchasing the work certainly has a negative effect on the market value. If a department regularly copies a newsletter and circulates it to the staff, it is clearly violating copyright law and depriving the copyright owner of income derived from multiple subscriptions.

Libraries are allowed to make copies under specific circumstances, namely:

• that reproduction or distribution is done with no commercial advantage
• that the library collection is open to the public or available to other researchers doing work in the field (via interlibrary loan or walk-in)
• that the reproduced item contains a notice of copyright
• that (as far as the library knows) the copy will be used for private study, scholarship or research
• that the copy will become the property of the user
• that the library will place a copyright warning notice wherever orders are placed.

Photocopying and interlibrary loan Interlibrary loan has very specific copying guidelines under the fair use doctrine. A library may borrow five articles from any one title during one calendar year, but when they receive the sixth request for that title, the library must order a subscription or report the copy to the Copyright Clearance Center and pay the royalty.

Since most libraries cannot afford to subscribe to new titles because of exorbitant costs, they are left with growing costs in royalties. Publishers who have witnessed thousands of cancellations over the past few years see royalties as a growing source of income. Though most are currently charging $3 to $12 per article copied, some (such as Gordon & Breach) are charging $40 per article. Libraries must carefully track borrows and payments, archiving records for three years, an added burden for an already overburdened interlibrary loan staff.

Photocopying and educators

Educators are granted certain privileges under the Copyright Act that make it possible for them to make multiple copies for classroom use without the copyright owner's permission. Each copy must contain a notice of copyright and meet the tests of brevity and spontaneity as spelled out by the law.

Basically, educators are allowed to make copies of small portions of materials and these portions are explicitly defined in the guidelines to Section 107 of the law. The copying must be spontaneous, not planned; if it is planned, the educator is required to get permission to use the item.

Instances of multiple copying are limited to nine instances per term for any one class. Of course, no charges for copyrighted materials may be levied on the students. Hemnes and Pyle's A Guide to Copyright Issues in Higher Education (National Association of College and University Attorneys, 1991) explains educational copying quite clearly.

Reserve copies

Educators may also make copies to put on reserve, but certain precautions must be taken. Educators should write to the copyright owner to get permission before putting an item on reserve. If a last minute, spontaneous decision is made to include something on reserve, it may be done that semester, but permission must be granted for subsequent uses.

Reserve copies must include a copyright notice and be attributed to the proper source. They must be copies of a small portion of the total work.

Copyright compliance

What can you do to comply with copyright law? First, become familiar with the ethical and legal use of materials in all formats--audio, video, print, photographs, software, etc. Always seek permission for use by contacting the owner of the copyright and either getting permission or paying the necessary fees involved. Crediting the source is not the same as getting permission.

Since March 1986, copyrighted materials have not been required to carry a notice of copyright. Users should assume that all materials are copyrighted unless they know otherwise. Items created or published after 1978 have a valid copyright for the life of the author plus 50 years. Copyrights previous to 1906 have expired. Certain government publications are not copyrighted and may be freely copied.

The cost of copyright infringement can be very high. Congress has provided for assessment of statutory damages against infringers in amounts up to $50,000 per work infringed. Copying of a single work over a period of time could result in damages assessed in the millions. Recent legal cases have underlined the seriousness of these issues and the determination of publishers to go after offenders. The Johns Hopkins University has taken a hard line against copyright violations, which includes terminating individuals who are guilty of violations.