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62nd IFLA General Conference - Conference Proceedings - August 25-31, 1996

Copyright, Libraries, and the Electronic Information Environment: Discussions and Developments in the United States

Duane E Webster
Executive Director
Association of Research Libraries


1. Introduction and overview

I am pleased to have this opportunity to comment on discussions and developments in the United States relating to copyright, libraries, and the electronic information environment. Right now in the U S copyright is one of the hottest topics in the library community: active discussions are underway in several arenas judicial, legislative, research, and education. This increased attention to qu estions of intellectual property rights and responsibilities is due in large measure to the opportunities provided by information technology, or IT. IT promises broad and innovative access, but with those improvements come all the economic pressures and opportunities that exist in the electronic information environment.

I express a librarian's perspective on the contemporary pressures that are influencing the future of scholarly communication. Librarians, I believe, serve as society's major advocate of the public good in assuring equitable access to information for all sectors of the population. Libraries, especially research libraries, comprise an important market and serve as essential points of access for a wide range of traditional and electronic information products. There are fundamental public policy issues that are an integral part of the print environment, and these issues are influencing the electronic information revolution. We believe a liberal interpretation of the fair use doctrine should apply in both environments. The purpose and character of the use of intellectual property is to serve social interests and the public welfare. Copyright law is intended to encourage learning, free speech, and the advancement of knowledge. The whole concept of copyright law is built around using the work, with owners being granted special use rights for a limited time. A central question facing all of us is: How can the electronic information revolution reward individuals and society for the investment needed to support the work of inventors, scientist s, scholars, and other idea creators, without unnecessarily restricting the rights of other users? We seek a system of incentives for individuals to create and make available new knowledge in the electronic environment. This system is fundamentally a public investment with an expectation of a public benefit. The tradition in our libraries, and in society as a whole, is one of open, equitable access to information and it is this tradition which is threatened in the new environment of electro nic information. My central thesis today is: that the principle of open, equitable access to information is one that needs particular attention, and protection, as we move into this electronic environment. This equitable access is necessary in order to avoid a stratification of information users based on institutional affiliation or ability to pay. Such a stratification would severely damage the fabric of know ledge creation and diffusion in our society. In the time available to me this morning, I want to review the developments in litigation, legislation, and campus based discussions. I expect this review will then identify the concerns research and academic libraries have as we move into the new electronic environment.

2. Judicial Developments

Fair use is a critically important doctrine in U S copyright law. It allows users of copyrighted materials teachers, students, scholars, artists to use these materials without seeking permission from the creator or publisher and without paying copyright fees. Fair use allows users to draw on the work of others. It allows scholars to advance a new argument, reviewers to criticize, artists to parody, and teachers to acquaint students with fresh insights. Of course, there are limitations on fair use. The most basic is that the use cannot significantly undercut what the creator or publisher might gain from commercial sale of the work. This doctrine of fair use is currently being debated in the U S.

In the U S courts, there is an intensified testing of current practices in regard to copyright. This is the result of an apparent strategy by major commercial publishers to pursue litigation under the current Copyright Law to define more expansively the rights of intellectual property owners. The Kinko's case in 1991, the Texaco case in 1994, and the Michigan Document Services case in 1996 are examples of efforts by publishers to narrow the circumstances under which fair use of copyrighted materials can be practiced.

In the Kinko's case, the court in New York City ruled that Kinko's Graphics Corporation exceeded its rights of fair use when it photocopied anthologies or course- packs for use at local universities. The impact of the judgment is serious for many faculties who are faced with delay and added labor to secure permissions for material they seek to make available to their students. In addition, and in many instances, material is not made available for use because publishers are unwilling to grant permissions or because the ownership of the property is in question.

The Texaco case, on the other hand, sets a more ominous precedent by threatening fair use rights. Briefly, journal publishers (American Geophysical Union; Elsevier Science Publishing Co. Inc.; Pergamon Press, Ltd.; Springer Verlag; John Wiley and Sons, Inc.; and Wiley Heyden, Ltd.), sued Texaco for photocopying individual journal articles and other short journal materials without paying a royal ty fee to the publishers. It should be noted that these copies were made for research purposes. Texaco defended by claiming, among other things, that the copying was a fair use under Section 107 of the Copyright Act.

After a limited trial on the Section 107 issue only, the trial court judge held that the copying was not fair use, but copyright infringement. On October 28, 1994, a Federal appeals court confirmed the initial judgment that the Texaco Corporation violated copyright laws because of the circumstances surrounding the photocopying of certain journal articles.

In response to the Texaco ruling, ARL, the American Association of Law Libraries, and the Special Libraries Association (along with other members of the university and library community, including the American Council of Learned Societies and the National Humanities Alliance) filed an amicus brief before an appeal court. The amicus seeks to elucidate and reaffirm fair use rights permitted to s cholars and researchers in the conduct of research and education as provided in the Constitution and in law.

On May 15, 1995 Texaco and a steering committee representing a group of 83 publishers agreed upon terms to settle the case. Texaco, which conceded no wrongdoing in the proposed settlement, will pay a seven figure settlement and retroactive licensing fee to the Copyright Clearance Center.

The Michigan Document Services case has prompted further discussion of the fair use doctrine as it applies to a "coursepack" collection of materials. The Sixth Circuit Court of Appeals in New York ruled on February 12, 1996 that an off campus, for profit photocopy shop may, as a matter of fair use, make coursepacks that include substantial portions of copyright protected books and sell them to students (Princeton University Press vs Michigan Document Services, Inc.). This ruling, as it stands, seems to contradict the Kinko's decision of 1991. It offers a much more liberal interpretation of the educational fair use doctrine and suggests that simplistic rules or sweeping requirements of permission for everything in a coursepack are inappropriate. In fact, even the Kinko's decision ref used to adopt a complete prohibition on photocopying in coursepacks, and the private settlement in that case allowed at least brief excerpts in coursepacks without permission.

The MDS decision is by no means the end of the debate. There are likely to be appeals of the judgment by the publishing community and there will be further litigation on these and related issues. In fact, the MDS case illustrates that fair use is a flexible and transitory concept constantly in need of regular review and fresh understanding. As you can see, the copyright issue in the U S is an ything but clear, and there will be more cases before we in the education community are clear on just what rights we can safely exercise.

But one thing is clear. This litigious environment serves to promote the interest of publishers to define narrowly the boundaries of fair use, especially when university legal counsel tend to urge cautious responses to the threat of litigation. It is apparent that librarians, who are sensitive to the rights and restrictions in sections 107 and 108 of the Copyright Law, are increasingly require d to assume an assertive, educational role in their communities about applications of fair use and personal use.

3. Legislative Developments

The Clinton administration, shortly after taking office, convened a National Information Infrastructure Task Force chaired by the Secretary of Commerce Ronald H Brown. The Task Force has largely functioned through a few Working Groups, including one on Intellectual Property, chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Bruce Lehman. The Intellectual P roperty Working Group prepared a draft "green paper" on Intellectual Property and the National Information Infrastructure which it released for public comment in July, 1994. A final, revised "white paper" version was released in September, 1995. This White Paper discusses intellectual property issues that arise with new information technology, and makes a number of legislative recommendations. These proposals have now been introduced in both Houses of the U S Congress.

The White Paper made no recommendations on fair use and certain other related library and education limitations on the exclusive rights of copyright holders. Instead, it created the Conference on Fair Use (CONFU) to determine whether guidelines might prove attainable in the NII context. Several dozen organizations participate in the work of CONFU. Many are organizations that represent publis hers and other copyright holders. Users of copyrighted materials are principally represented by library organizations, including ARL.

In these debates, publishers worry that networks and digital technology provide opportunities for users to transmit millions of illegal, perfect copies across the globe with just a few key strokes. They see fair use as an open door to exploitive behavior that will undercut their financial viability. Librarians on the other hand, are concerned that the new technology will be applied by commerci al interests to create a world which is strictly pay per view. In such a restrictive environment, many users would be disenfranchised and it would be impossible to provide equitable access to those resources needed for education, creativity, or the advancement of knowledge. Because of the extent and importance of these differences, the work of CONFU is likely to extend through the fall of 1996 and possibly beyond. Unfortunately, it is not at all clear that such guidelines are achievable.

The NII Task Force's White Paper legislative proposals were introduced in September 1995 as H R 2441, the National Information Infrastructure Copyright Protection Act of 1995. The House has already conducted hearings and the Senate will in the next few months.

The proposed legislation covers a number of items of concern to research and education including a proposal that a right of "transmission" be added to the section 106 list of exclusive rights of copyright holders. This would greatly strengthen the rights of copyright proprietors in the electronic environment, providing them with near total control over the reproduction, distribution, and use of their works. This level of control is far beyond that which they enjoy in the print media and will substantially raise the cost and reduce the flow of information that has fueled growth in research, education, and creativity in American society. Ostensibly, the proposed legislation is silent on issues of fair use, but many in the education and library arena believe without a clearly stated un derstanding of what constitutes fair use in digital environments, that the proposed transmission right would upset the balance between owners and users of information.

It is expected that by the end of summer 1996, there will be greater clarity in the direction and the outcome of this legislation.

4. Campus based Discussions

Discussions of the management of intellectual property rights within the research and education communities have accelerated with the availability of new electronic communications technology. The emergence of channels for the electronic collection and distribution of information provide non profit scholarly societies and universities with opportunities to develop alternatives to the current com mercially dominated systems of information creation, distribution, and use.

For example, there is growing interest in modifying the traditional practice of routinely transferring the ownership of intellectual property from authors to commercial publishers. Papers produced by scholars in the university environment could remain at the university and be stored in a computer file, with copies transmitted electronically to other scholars upon request.

Traditional roles for university management of intellectual property are also under review. Concepts under discussion include the establishment of a university policy and concomitant mechanisms for faculty authors, or their universities, to retain full or joint ownership of the intellectual property created on campus and the development of strategies to digitize university generated or owned pu blications in order to preserve and make them more readily available over networks.

Efforts are also under way to encourage the creation of robust not for profit publishing efforts that take full and creative advantage of available technology and networks. The American Association of Universities and the Association of Research Libraries are working together to establish an Electronic Scholarly Publishing (ESP) program that encourages the establishment of electronic informatio n resources of significant value to scholars. At the heart of this effort is the vision for universities to act in concert to support an electronic scholarly communication system that is more accessible to users and more cost effective. This effort is specifically aimed at:

These discussions are also in a state of rapid development and it is hoped that decisions on building an academy based electronic scholarly publishing capability will be realized by the end of the year.

5. Closure

As we move toward a global, knowledge based society, the U S constitutional scheme of copyright aimed at promoting learning by granting authors the exclusive right to publish their writings must be protected and extended. A crucial element in assuring the achievement of this objective in the new electronic environment is understanding the necessary role of the fair use doctrine. This doctrine ensures that copyright does not become an undue obstacle to learning. Fair use is simply an equitable rule of reason which ensures that one may make use of the copyright work to the extent that such use does not unduly harm the copyright owner. Congress clearly intends for the fair use doctrine to apply to the products of new technology regardless of whether those products are sold or leased .

We face an exciting era where new technology, the extension of education to an increasing portion of an expanding world population, and thriving scientific, humanistic, and social sciences research, combine to provide an unparalleled opportunity to extend access to knowledge for the benefit of all of society. Information must be viewed as a precious public asset to be leveraged for the benefit of society as a whole, not as an exploitable economic commodity for the monetary gain of a few.