As of 22 April 2009 this website is 'frozen' in time — see the current IFLA websites
This old website and all of its content will stay on as archive –
62nd IFLA General Conference - Conference Proceedings - August 25-31, 1996
Copyright in the United States: Current Developments & Initiatives
Mary E. Jackson
Access & Delivery Services Consultant
Association of Research Libraries
Washington, DC USA
Copyright and intellectual property issues are the subject of intense debate in the United States, and these debates are also escalating internationally. This paper will review recent copyright developments and initiatives in the United States. The examination will focus on three areas: administrative developments, legislative initiatives, and recent litigation. The paper will conclude by plac
ing the U.S. initiatives in the international context.
U.S. core copyright industries generate business in excess of US $200 billion annually. Much of this is from the entertainment and mass market industries, however a small but important portion comes from scholarly publishing. With the world wide dissemination of products generated by these core businesses, copyright concerns are no longer limited to the domestic arena.
It is not surprising, therefore, that much of the current debate in the U.S. centers on how best to protect copyrighted materials, both nationally and internationally. Unauthorized piracy, technological protection, and significant economic return are phrases commonly heard in recent domestic copyright debates.
The genius of the United States copyright law is that it balances the intellectual property rights of authors, publishers, and copyright owners with society's need for free exchange of ideas. U.S. copyright laws and similar laws worldwide protect free expression and the exchange of ideas, thus enabling authors to create new works or build on previous works, either for entertainment or scholarshi
p purposes. Copyright promotes the dissemination of knowledge while ensuring copyright owners protection of those works as well as their economic investments. Intellectual Property: An Association of Research Libraries Statement of Principles and Fair Use in the Electronic Age: Serving the Public Interest are two recent statements that articulate these concepts of balance.(1)
Library and education associations have formed several coalitions to ensure that the voice of users of copyrighted works are heard, and thus the balance maintained. As an example, the Digital Future Coalition (DFC)(2) was established in Fall 1995 to ensure that the Congressional intellectual property debate is thorough, broad, and balanced. DFC includes over 30 organizations representing high t
echnology industry groups, library and educational associations, and consumer and privacy advocates.
2. ADMINISTRATIVE DEVELOPMENTS
Much of the recent copyright debate has evolved out of the Clinton Administration's National Information Infrastructure (NII) initiative. These activities have resulted in the distribution of the "White Paper" and the sponsorship of the Conference on Fair Use (CONFU).
"Intellectual Property and the National Information Infrastructure" (The "White Paper")
The Clinton Gore Administration established the National Information Infrastructure Task Force (IITF) to explore the application and effectiveness of copyright law and the NII. The IITF Working Group on Intellectual Property (IP) Rights was chaired by Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks. The Working Group released it's preliminary findings i
n the July 1994 "Intellectual Property and the National Information Infrastructure," or the "Green Paper." The final version, also with the same title, was released in September 1995 and is commonly referred to as the "White Paper." Both papers address copyright law and public policy issues in the digital environment, and the White Paper includes a series of recommendations to update the U.S.
Copyright Act of 1978. (3)
Conference on Fair Use (CONFU)
The Conference on Fair Use (CONFU) brings together copyright owner and user interests to develop guidelines for fair use of copyrighted works by libraries and educational institutions. CONFU is hosted by the IITF's Working Group on Intellectual Property Rights and is facilitated by the U.S. Patent and Trademark Office.(4)
Since September 1994 over 60 representatives have been meeting almost monthly to reach an understanding of fair uses in the digital environment. Participants have identified interlibrary loan, distance learning, electronic reserves, and digital images as issues for which fair use guidelines might be developed. The CONFU process has demonstrated the challenges in reaching consensus on a balanced
view of fair use in the digital environment. To date, no guidelines have been adopted, and it is unclear whether consensus guidelines can be developed by the end of the year.
3. LEGISLATIVE INITIATIVES
At least three pieces of legislation relating to intellectual property are being debated in the current session of Congress.
NII Copyright Protection Act (H.R. 2441 & S. 1284)
This act proposes to amend the U.S. Copyright Act "to bring it up to date with the digital communications age." This bill was introduced in both houses of Congress and includes verbatim recommendations from the White Paper. Between fall 1995 and spring 1996, Congress held a series of hearings on the bills. As of late summer, it appears unlikely that Congress will pass this legislation before r
ecess for the November 1996 election.
However, it is likely that the bills will be re introduced in the next session of Congress in early 1997. Several legal experts suggest that if the NII Copyright Protection Act is passed without modification, the "public square" of the Internet would be transformed into an online department store with comprehensive bar coded inventory and where purchases would be made only with charge accounts.
Copyright Term Extension Act (S. 483)
Current U.S. copyright protects works for the life of the author plus 50 years. Two bills are currently being debated to extend that protection by an additional 20 year in order to harmonize the U.S. law with the protection given to copyright holders in the European Union.
U.S. library and education associations are actively seeking a "library exemption" to permit certain uses, including preservation, scholarship, teaching, or research, during the last 20 years of protection. As of mid summer, the likelihood of passage appears remote, but it is also reasonable to expect that identical bills will be introduced in the next Congress.
Database Investment and Intellectual Property Antipiracy Act (H.R. 3531)
This bill, quietly introduced in late spring, seeks to provide protection for 25 years of "any collection, assembly, or compilation, in any form or medium now or later known or developed, of works, data or other materials, arranged in a systematic or methodical way." Protection would also be granted if there is a qualitative or quantitative investment of human, technical, financial, or other res
ources. As of late summer, no hearings have been held on this bill.
The bill introduced into Congress is virtually the same language as is being promoted for an amendment to the Berne Convention. It is possible that if this bill is not approved by the U.S. Congress but approved by the delegates to the December 1996 Berne Convention Conference and subsequently approved by the U.S. Senate, no domestic legislation would be required as the same level of protection a
fforded database producers will be made available by the approval of the amendment, or Protocol, to the Berne Convention.
4. RECENT LITIGATION
Because sections of the U.S. Copyright Act do not provide fact specific guidance, especially the fair use doctrine described in section 107, much of the understanding of copyright comes from the facts of a case or the circumstances of use tried in specific litigation. Two recent lawsuits have centered on the fair use principle, which is a legal doctrine that permits individuals to make certain
types of uses without seeking permission from the copyright holder.
Michigan Document Services (MDS)
Michigan Document Services, a commercial copy shop located near the University of Michigan campus, was sued by Princeton University Press and other publishers over whether a for profit photocopy shop may, as a matter of fair use, make coursepacks that include substantial portions of copyrighted materials and sell them to students. Coursepacks are collections of copyrighted and non-copyrighted ma
terial assembled by teachers, photocopied by bookstores or copy shops, and purchased by students in the course.
The first decision ruled in favor of the publishers, but in February 1996 a higher court overturned that decision and ruled in favor of MDS. In April that decision was dismissed in order to permit all judges of the Sixth Circuit Court of Appeals to re
consider the case. Because the case may be appealed to the Supreme Court, it is impossible to speculate on the ultimate outcome of this fair use case.
"The Texaco Case"
The "Texaco" case is a widely know "fair use" lawsuit in which a group of publishers sued the Texaco Corporation in 1985 citing infringement by an individual scientist who had photocopied articles from scientific journals. The central issue of the case was whether making a single copy of scientific articles for personal use was considered a fair use. After several levels of appeals, the case wa
s settled in May, 1995. This settlement means that the case will not be heard by the United States Supreme Court which may have clarified the concept of fair use. It is important to remember that this case applied only to for profit corporations and not to educational or non profit institutions.
5. INTERNATIONALIZATION CONCERNS
The World International Property Organization (WIPO) is the arm of the United Nations that promotes the protection of intellectual property throughout the world and ensures administrative cooperation among various intellectual property treaties. The Berne Convention was established in 1886 to protect literary and artistic works and is one of four treaties specifically dealing with copyright or n
eighboring rights. The other treaties are the Rome Convention, the Geneva Convention, and the Brussels Convention.
In December, 1996 a formal Diplomatic Conference of the Berne Convention will be held in Geneva, Switzerland to amend this treaty by means of a new "Protocol." The U.S. delegation, on behalf of President Clinton and Vice-President Gore, are aggressively urging that the proposed new Protocol include a series of proposals to update copyright law for the digital age. These proposals are essentiall
y the same as the legislation now being considered by the U.S. Congress. The U.S. delegation is led by Bruce Lehman, chair of the IITF's Working Group on Intellectual Property Rights, who oversaw the White Paper initiative.
Because it is highly unlikely that the Congress will pass the copyright legislation before adjourning in October, many in the U.S. are concerned that the December Berne Convention will result in agreement on amendments or Protocols on issues that have not been fully considered by the U.S. Congress and around which no domestic policy consensus has formed. Thus, efforts are underway to limit the D
iplomatic Conference to matters previously considered by WIPO and around which domestic and international consensus has formed within the majority of WIPO members. These issues include computer programs, original databases, and TRIPS enforcement provisions (the TRIPS agreement restores copyright to works of foreign origin no longer protected by domestic copyright laws).
The U.S. library and education community fully supports careful consideration and debate by delegates to the Diplomatic Conference in order to ensure that international consensus is reached and that any Protocols are balanced, that is providing exclusive rights to copyright owners while limiting those rights for users of those copyrighted works. A number of U.S. library associations are encourag
ing other international library associations and organizations to initiate domestic debate in order to ensure that the Berne Convention does not result in the development of international understandings before domestic consensus has been reached.
Most all copyright laws recognize copyright as a private monopoly conditioned with exceptions for certain uses without requiring the user to seek permission for those uses. Current legislative initiatives in the United States appear to tip the balance in favor of the copyright holders and similar leanings are beginning to appear on the international front. U.S. library and education association
s support a balance between owners' exclusive rights and users' limitations on those rights. The unconditional legal and technological protection sought by copyright holders needs to be balanced by exclusions that permit appropriate uses of copyrighted works. Several library associations are working to prevent a future that would prohibit access to copyrighted works, a future that might be exem
plified by the statement on the World Intellectual Property Organization's home page:
Much of the information behind these links is owned, copyrighted, and sold by WIPO, and as such we cannot make it available to the public without further authorization.
- Both statements can be found in Copyright and the NII: Resources for the Library and Education Community (Washington, DC: Association of Research Libraries, 1996).
- For additional information on the Digital Future Coalition see the DFC home page on the World Wide Web at < http://www.ari.net/dfc/>.
- The White Paper is available on the World Wide Web at .
- For a summary of the CONFU process see: ARL : A Bimonthly Newsletter of Research Library Issues and Actions, 186, June, 1996, p. 8.