Second Plenary Session

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 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 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,

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 ( 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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