Copyright, Higher Education, and News from Washington
Dr. Kenneth Crews, J.D., Ph.D.
Director, Indiana University Copyright Management Center
Indiana University School of Law--Indianapolis
Indiana University School of Library and Information Science
IN A LIVELY and fast-paced presentation, Dr. Kenneth
Crews, one of the nation's leading authorities on copyright, highlighted
recent major changes in copyright law and the impact these changes might
have on libraries.éIn the past, says Dr. Crews, libraries have had the luxury of ignoring copyright issues by claiming, "Who's going to find out, anyway?" Changes in our library activities have essentially moved us outside the walls of the library to the very visible arena of the Internet. We would be wise to pay closer attention to copyright issues, especially in relationship to distance education and other digital delivery systems.
Copyright Law Has Changed
Copyright law has also changed substantially in the past year, with three
major developments of particular concern for libraries. The copyright term
extension, for example, has lengthened the time it takes for works to move
from copyright protection into the public domain. (See www.unc.edu/~unclng/public-d.htm
for more specifics.) This could impact libraries undertaking digitizing
efforts.
Libraries will also be affected if they deliver any type of content to students
at a distant site. Dr. Crews referred people to his "Summary
of U.S. Copyright Office Report on Distance Education" as well as to
the recent "Report on Copyright
and Digital Distance Education" to Congress by the U.S. Copyright Office.
The third development of major concern is the Digital Millennium Copyright
Act of 1998, which will pose significant challenges to libraries and faculty
in terms of e-mail usage, website development, distance education and online
research activities (see "New
Copyright Legislation Directly Affects Teaching and Research: Congress Enacts
the Digital Millennium Copyright Act."
Dr. Crews posed a series of six questions to help the audience better understand
the changes in the law:
1. What works are eligible for copyright protection? The law covers
all original works fixed in a tangible medium, including printed items,
artwork, visual images and electronic media.
2. How does one secure copyright protection? Protection is now automatic--nothing
further need be done for a work to be covered by copyright. A copyright
notice is no longer necessary, although some formalities continue to yield
benefits. Everyone is now both a copyright user and a copyright owner.
3. Who is the owner of the copyright? The creator of the original
work is the owner of the copyright. There may, however, be questions about
whether the work is considered work-for-hire, in which case the copyright
is owned by the institution. Authors were urged to examine institutional
policies carefully to determine how their intellectual work may be covered.
4. What are the rights of the copyright owner? These vary, depending
on reproduction, distribution, whether it is a derivative work, or if it
is for "public performance and display." A new section on "moral rights"
is aimed at preventing the intentional destruction of visual artworks.
5. How long do copyrights last? This, too, varies, depending on if
the work was created and/or published before, during, or after 1978. (For
a detailed chart of specific criteria, see www.unc.edu/~unclng/public-d.htm).
Congress periodically extends copyright protection, leading some to call
it "perpetual copyright on the installment plan." Works published prior
to 1922 can be safely assumed to be in the public domain in the U.S.
6. What are the rights to use copyrighted works? Dr. Crews highlighted
four sections:
A. Fair Use (section 107) continues to consider the purpose, nature and
amount of the work in question as well as the effect of the use on the value
of the original.
B. Library copying is covered under section 108, including copying for interlibrary
loan purposes; section 108 was amended in 1998 to encompass digital technologies
for preservation copying.
C. First Sale (section 109) looks at sales, rental and leasing of materials.
D. Performances and Displays (section 110 (1) and (2)) covers face-to-face
teaching and distance learning. The eligibility requirements for the performance
or display of copyrighted works in distance learning require that the use
be a regular part of systematic instruction; directly related to teaching
content; and received in classrooms (or similar places) or by persons with
"disabilities or other special circumstances." Technology is already testing
the limits of this law, as it does not accommodate at-home reception (except
in special circumstances) which is how students and library users increasing
want to access materials. Moreover, once complying with these ground rules,
today's law allows displays of static images, but allows performances of
only "nondramatic" musical and literary works. Dramatic works and audiovisual
works are not allowed in distance education under section 110(2).
In May 1999, the U.S. Copyright Office issued a report to Congress outlining
revisions suggested by a wide constituency of interested parties. According
to Dr. Crews, the report takes a "remarkably balanced approach" to the issues.
A few of the recommendations include: allowing use of a full range of types
of materials in mediated instruction; allowing transmission beyond classrooms;
allowing retention of materials for an academic year; continuing to apply
fair use; requiring institutions to inform their communities about copyright;
and limiting access to enrolled students. (To see the text of this and related
reports, see URL noted above.)Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) has important provisions for
those institutions also serving as Internet Service Providers (ISP). In
some cases, says Dr. Crews, new areas of copyright law have been created,
such as "circumvention of technological measures." For example, if a library
provides access to a database with a "protection system" (i.e., password),
circumvention of the password becomes a new form of federal violation of
copyright law. Similarly, providing access to a database without also including
access to the "terms and conditions" for using the database can also be
a federal offense. For libraries undertaking preservation projects, the
same rules apply to digital conservation.
Dr. Crews went on to discuss liability issues for campuses that also serve
as ISPs. For example, if a campus provides e-mail, Web space, or network
access, and the user commits copyright infringement, the provider may be
liable. DMCA does, however, provide a "safe harbor" for institutions that
act as a provider and comply with all the provisions of the act, leaving
the individual liable. In order to comply fully with the act, the institution
must--among other things--adopt and implement a policy for dealing with
infringement by users, including a "notice and take down" provision which
requires removal of objectionable materials.
Linking to other websites from a library website should not pose a problem,
as long as the online service provider has no actual knowledge of or "awareness
of facts suggesting infringement" and removes such materials once it is
notified of infringement. There can also be no financial benefit to the
online service provider.
Dr. Crews gave a few more examples regarding faculty websites before turning
the podium over to his two respondents. More information on all of these
issues is available at his website, http://www.iupui.edu/~copyinfo.Respondent: Martha Winnaker
The first respondent was Martha Winnaker, Executive Assistant to the Associate
Vice President, Information Resources and Communications, University of
California Office of the President (www.ucop.edu/irc).
Ms. Winnaker discussed some of the policy issues her institution has dealt
with regarding copyright. She agreed with Dr. Crews that the law is evolving
to meet the challenges of the rapidly changing technology. She urged libraries
to take advantage of the opportunities to comment on the DMCA, as this affords
libraries the chance to shape the law to best meet their needs. She emphasized
that libraries must pay attention to how we use and provide access to our
databases.
Ms. Winnaker reminded the audience that the "safe harbor" described by Dr.
Crews protects only the institution, not the individual. Institutions are
not required to monitor their networks but must respond to complaints. As
an example, she told of a complaint received from Lucas Films regarding
a UC site. After investigation it was determined that a student at one of
the UC campuses had the complete version of the latest Star Wars movie available
for downloading from his computer in a dorm room. The only way for UC to
"take down" the site was to disconnect the Internet connection to that room.
The student then, of course, moved the computer into the room next door.
Other issues to be aware of include offering pirated software, visual arts
projects that may incorporate copyrighted images (e.g., Mickey Mouse), and
MP3 compressed audio formats which students are increasingly using to download
and copy music CDs for their friends.
Ms. Winnaker echoed Dr. Crews's comments that we cannot afford to be complacent,
because the issues and problems are quite visible beyond the university
to the outside world.Respondent: Laura Parker
The final respondent was Laura Parker, western regional representative of
Academic Press Ideal. Ms. Parker spoke of the challenges faced by commercial
vendors in developing fair and reasonable license agreements. As vendors
get more experience with database licenses, she said, they tend to be less
restrictive and want to work to meet the needs of the institution. For example,
her company now allows casual use of databases by walk-in users, meaning
databases do not have to be passworded for on-premise use by the public.
Use of materials in course-packs or reserves is also allowed, in either
print or digital format, as long as it is deleted at the end of each term.
Articles or chapters can also be downloaded and transmitted for scholarly
communication.
Interlibrary loan poses different problems, primarily because electronic
transmission makes it possible to make infinite copies with no loss of quality.
The publisher currently requires the article be printed out and then used
with the same restrictions as applied to other print versions.
For distance learners, a growing population in her region, said Ms. Parker,
the university must authenticate their users by IP address or proxy server.
Simple ID and passwords are considered too insecure.
It is the responsibility of the institution to educate their users about
"reasonable and authorized use" while taking steps to prevent user abuse.
If a problem should occur, her company would go after the user rather than
the institution.
The licensing process is evolving, said Ms. Parker, getting shorter in the
process. Licenses are getting less restrictive as publishers gain experience
and are able to see use patterns. She anticipates publishers moving toward
generic licenses applicable to all publishers.Questions and Answers:
The question and answer period generated additional considerations. For
example, what strategies should we be developing for copyright issues springing
out of online courses we create? "Get a policy" was the initial response,
with additional suggestions, such as: ask questions of supervisors about
who owns the copyright to work you create as a part of your job; does the
institution or the individual own the copyright? Develop a policy to address
this question and look at the possibility of a policy that allows sharing
of rights to an individual work, rather than giving all rights to any one
party.
A recent U.S. Supreme Court case citing state sovereignty was mentioned,
which found that state agencies couldn't be sued in federal court. All panelists
warned that this doesn't necessarily take state employees "off the hook."
Willful infringement can be criminal. Our worry, say Dr. Crews, is not so
much about "Will I be sued?" but "What is the right thing to do?" He also
reminded the audience that plagiarism and copyright infringement are not
the same thing. Citations and footnotes to the original are largely irrelevant
if you illegally reproduce the work.
The common thread of the three speakers was that we are simultaneously users
and owners of copyright. The technology is evolving so quickly that the
law sometimes takes a while to catch up. Libraries gain greater benefits
by keeping abreast of the law and taking every opportunity to comment on
proposed changes to the laws. 
Paula Hammett
Sonoma State University
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