Appendix 3

Intellectual Property and the National Information Infrastructure

- Serving the Public Interest?

Mary Jackson

ARL Access & Delivery Services Consultant

1. WITHOUT INFRINGING COPYRIGHT, THE PUBLIC HAS A RIGHT TO EXPECT:

A. to read, listen to, or view publicly marketed copyrighted material privately, on site or remotely;

CURRENT ENVIRONMENT

Section 106 gives five exclusive rights to copyright owners. However, these rights are not absolute. Limitations to the exclusive rights are enumerated in sections 107-120. In particular, sections 107 through 110 of the Copyright Act permit the public to read, listen to, replicate, use, or view copyrighted works under certain circumstances without obtaining permission from the copyright owner. The first sale doctrine permits such used without obtaining permission from the copyright owner. The public is now able to check out a book or other material from a library, listen to a new rendition of a favorite composer in a music store before purchasing the work, or view a copyrighted work of art while watching a TV program on the artist.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The White Paper asserts that technological solutions will permit copyright owners to protect their works against unauthorized access, performance, and display. It further recommends reinforcing technological processes and systems to prevent or restrict unauthorized uses. (p.177 & 230) The White Paper asserts that the first sale doctrine is inappropriate in the digital environment, which would result in a circumvention or elimination of the public's ability to read, listen to, or view copyrighted works.

POTENTIAL IMPACT

Before accessing copyrighted materials electronically, users would be required to secure permission from the copyright holder. Users would be restricted from digital browsing of their favorite author's latest bestseller. A student would not be able to use the NII to retrieve and read a scholarly article assigned by his/her professor. A musician would not be able to go into Tower Records and listen to the first few bars of a new recording of Beethoven's Fifth Symphony. Likewise, an art history student would not be able to view the commercially produced slides of any living artist.

B. to browse through publicly marketed copyrighted material;

CURRENT ENVIRONMENT

The public currently enjoys the ability to browse or skim copyrighted works. Both fair use, section 107, and the first sale doctrine, section 109, provide users with rights to access, read, browse, and use copyrighted materials. The fair use acts of criticism, comment, scholarship, etc. assumes that users will browse through many copyrighted materials in the course of those activities.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The White Paper recommends a new right for copyright holders, one that permits the copyright holder to control the distribution and public display of materials on the NII. Because this transmission right would result in the display of the work being browsed, the public display right is also implicated. The White Paper emphatically states that browsing of a copyrighted work results in the public display on a workstation or computer terminal, although case law suggests something less clear. (p. 72)

POTENTIAL IMPACT

This new right would enable copyright holders to prevent users from accessing and browsing copyrighted works on the network. If this were the case, network users would not be able to "flip the pages" of a copyrighted work on the network, an action comparable to their current right to skim the contents of a magazine or a popular book in a bookstore or newsstand before purchasing the item. In order to browse electronic works, users would be required to obtain permission from the copyright owner. Users may be required to pay two fees - a royalty fee to browse the magazine's table of contents, and the fee to purchase or lease the item. Elimination of the ability to browse, or implementation of a system whereby each "access", "look", or "browse" would be tracked and/or paid would have two serious effects on users - increase the costs of access, and discourage curiosity to surf or preview materials before choosing to buy or borrow them.

C. to experiment with variations of copyrighted material for fair use purposes, while preserving the integrity of the original;

CURRENT ENVIRONMENT

The fair use provisions permit a range of uses including the ability to translate, modify, alter, and experiment with variations of copyrighted works during the course of instruction, teaching, or research. In these cases, users do not alter the original copyrighted work, but will more commonly make a copy from which such experimentation is made.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The White Paper predicts that technological protection systems will be developed to prevent or restrict unauthorized uses of copyrighted works because "legal protection alone will not be adequate to provide incentive to

authors to create and to disseminate works to the public." These schemes would enable copyright owners to protect fully and absolutely their works available on the network. Effective technological protections would prevent lawful uses of copyrighted works, even in cases in which users paid for those works. (p. 230-231)

POTENTIAL IMPACT

Online uses of copyrighted materials would be minimized or prohibited. For example, a student may be prohibited from studying photographs and experimenting with enlarging the image or changing the color composition. Another student might not be able to use literary works for comparison, discussion, or parody. Faculty may also be restricted in maximizing the available technologies in developing learning materials.

D. to make or have made for them a first generation copy for personal use of an article or other small part of a publicly marketed copyrighted work or a work in a library's collection for such purpose as study, scholarship, or research;

CURRENT ENVIRONMENT

Section 107 permits individuals to make copies without prior authorization for certain purposes. Section 108(d)(1) permits libraries to copy articles, contributions, or small parts of copyrighted works as long as the copies are given to the users. Such copying is permitted if the user's purpose is private study, scholarship, or research.

WHITE PAPER AND LEGISLATIVE PROPOSALS

Although the White Paper states that fair use will continue to exist in the digital environment, it also asserts users will need authorization/permission from the copyright owner to make a copy of a copyrighted work. The White Paper envisions a bleak future in which users will deliver perfect copies of digitized works to scores of other individuals or will upload copies to the network resulting in thousands of individuals downloading or printing unlimited "hard" copies. (p. 15) The White Paper cites a number of examples to support the view that reproduction of a copyrighted work on the network should not be permitted unless specifically authorized by the copyright owner. The White Paper even notes that educational uses that "are constrained in the same manner as copyright permitted under the Classroom Guidelines" will likely be fair. (p. 82)

POTENTIAL IMPACT

In essence, this new authorization requirement would eliminate the reproduction of copyrighted works without prior permission that forms the current foundation for scholarship and learning. Students would not be able to make a copy of a chapter from digital readings assigned by their professors. Faculty would not be able to copy a chapter from a digital book or paper in a

conference proceedings to further their research. Individuals would not be able to print results of genealogy research from works on the network. Libraries would not be able to make electronic copies of reserve materials for distance learners.

E. to make transitory copies if ephemeral or incidental to a lawful use and if retained only temporarily.

CURRENT ENVIRONMENT

Section 112, ephemeral rights, and section 117, computer programs, limit the exclusive rights of copyright holders by enabling temporary copies in the course of running computer programs. In particular, section 117(1) states that it is not an infringement to copy a computer program if the new copy is an essential step in the utilization of the program.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The ability to make a temporary copy enables a user to display a copyrighted work on a computer or workstation monitor. The White Paper cites case law to support the view that making a temporary copy in the computer's memory (RAM) is a reproduction, further noting that reproduction is one of the exclusive rights of the copyright holder. (p. 64)

POTENTIAL IMPACT

Without first deciding to buy/lease them, individuals would not be able to access and read copyrighted works on the network via workstations in libraries, offices, homes, etc. because the works cannot be downloaded and displayed. The inability to make a temporary copy of a work would also eliminate the ability to read, browse, manipulate the work, or make a copy, a]] of which require the temporary storage of the copyrighted work in a computer's memory. Restricting such uses of network technology would greatly stifle some of the potential benefits of this new environment. For example, distance learning or collaborative learning activities would be hindered because the network makes transitory copies as materials are transmitted.

2. WITHOUT INFRINGING COPYRIGHT, NONPROFIT LIBRARIES AND OTHER SECTION 108 LIBRARIES, SHOULD BE ABLE TO:

A. to use electronic technologies to preserve copyrighted materials in their collections;

CURRENT ENVIRONMENT

Library preservation activities are authorized under sections 108(c) and (d), but because the section uses the phrase "in facsimile form," use of digital (i.e. image) preservation technologies is less clear. Section 117(2) does specifically authorize libraries to make archival copies of computer software programs.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The White Paper specifically addresses current library exemptions to the exclusive right of the copyright holder and recommends a change to the copyright law to permit libraries to use digital technologies for the preservation of library materials. p. 226-227)If enacted this recommendation would permit libraries to used digital technologies to meet current preservation standards

POTENTIAL IMPACT

While the proposed amendments would allow libraries to use technology for preservation purposes, they do not enable a library to provide access to all digitally preserved copies. As a result, library users would actually loose access to materials previously accessible in the collections. To circulate or lend a digitally preserved copy, library staff would be required to make a print copy of the work Historically libraries have taken on the role of preserving and providing continued access to materials that are out of print, damaged, or deteriorating. In most cases, preserved materials are not materials that have a market value but rather a value for research or learning. If libraries are to exploit fully new technologies for the purposes of preservation, then it follows that they should also be able to exploit new technologies to provide access to these preserved materials.

B. to provide copyrighted materials as part of electronic reserve room service;

CURRENT ENVIRONMENT

The reserve room is considered an extension of the classroom, and as such, libraries rely on the parenthetical example included in the list of authorized uses in section 107 - "including multiple copies for classroom use." Libraries also rely on their reproduction rights in section 10S, specifically subsection (d)(1), to make copies for reserve use.

WHITE PAPER AND LEGISLAIIVE PROPOSALS

The White Paper does not specifically mention electronic reserve room services. However, if the restrictions on personal use described in part 1 above are realized, libraries may not be able to include copyrighted works in electronic reserve systems because the faculty would not have the right to request the library to reproduce, scan, store, or provide electronic access to copyrighted works.

POTENTIAL IMPACT

Libraries or faculty would be required to secure permission from the copyright holder to include a copyrighted work in electronic reserve systems, even for one semester. The advantage of using electronic reserve systems is to provide more convenient access to all registered students especially those enrolled in distance learning courses. The cost of royalties and the cost of the

management of the permissions process would limit the use of the NII for electronic reserve systems.

C. to provide copyrighted materials as part of electronic interlibrary loan service;

CURRENT ENVIRONMENT

Section 108(g)(2) authorizes libraries to participate in interlibrary arrangements and specifically permits libraries to reproduce and distribute a copy of a copyrighted work on ILL. This section places no limitations on the methods by which that reproduction and distribution may occur, thus facilitating the use of digital scanning and transmission technologies by ILL departments.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The White Paper suggests that electronic "publication on demand" might become an effective and economic substitute for ILL on the NII. (p. 88) The White Paper recognize that libraries have the need for shared access to copyrighted works but also notes that library exemptions in Section 108 do not authorize unlimited reproduction of copies. The report calls into question the applicability of current guidelines (regarding the number of copies that may be requested on interlibrary loan) to the electronic environment and urges establishment of institutional licenses for schools and libraries to acquire copies on demand from a copyright owner rather than on ILL from another library.

POTENTIAL IMPACT

Institutional licenses could restrict the ability of an interlibrary loan department to supply a copy of a network-accessible work to another library. Libraries could be required to purchase articles from authorized suppliers rather than obtain them from other libraries. Libraries might even be prevented from faxing copies of digitally preserved copies to other libraries via ILL. The proposed changes in the legislation would dramatically curtail the level of ILL access authorized by current law.

D. to avoid liability, after posting appropriate copyright notices, for the unsupervised actions of their users;

CURRENT ENVlRONMENT

Section 108(f)(1) releases libraries and their staff from liability from unsupervised copying as long as the reproducing equipment displays a notice that the making of a copy may be subject to the copyright law.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The White Paper concludes it is premature to reduce the liability of any type of service provider in the NII environment and notes that libraries may be

held liable for infringements by their users (p. 122). The White Paper even cites a court case in which the courts used a public library as an example of a "distributor." (p. 115)

POTENTIAL IMPACT

Libraries are both providers and users of content on the network and if the environment described in the White Paper were to materialize libraries would be responsible for supervising users who access full-text and full-image copyrighted works via stand-alone or networked workstations. This effectively eliminates unsupervised use of library materials.

3. USERS, LIBRARIES, AND EDUCATIONAL INSTITUTIONS HAVE A RIGHT TO EXPECT:

A. that the terms of licenses will not restrict fair use or other lawful library or educational uses;

CURRENT ENVIRONMENT

The Copyright Act does not address licensing agreements. Because licensing is governed by contract law, and contract law supersedes copyright law, fair use and library exemptions are vulnerable if a work is licensed.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The report is replete with references to licenses, many of those references suggesting that "licensing of transactions of works in digital form will be a feature of the digital distribution systems of the future." (p. 226) The White Paper notes that reliable copyright management information systems will "facilitate efficient licensing and reduce transaction costs for licensable users of copyrighted works,"

(p. 235) and encourages the widespread use of licensed information. The most chilling statement in the White Paper concludes that "it may be that technological means of tracking transactions and licensing will lead to reduced application and scope of the fair use doctrine." (p. 82)

POTENTIAL IMPACT

Users would no longer be able to exercise their fair use rights when using licensed materials. Libraries would not be able to supply on ILL copies of articles from licensed journals. Faculty would not be able to place a licensed work on reserve (print or electronic). Libraries would be prevented from archiving licensed material unless the license specifically permits archival preservation

B. that U.S. government works and other public domain materials will be readily available without restrictions and at a government price not exceeding the marginal cost of dissemination;

CURRENT ENVIRONMENT

Section 105 prevents works of the U.S. Government from being copyrighted, thus facilitating widespread distribution of such works through a variety of methods.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The report acknowledges the existence of works not protected by copyright, and in the recommendation for technological protection, states that "while technological protection may be applied to copies of works in the public domain, such protection attaches only to those particular copies, not to the underlying work itself." (p, 232)

POTENTIAL IMPACT

Unless copyright protection systems clearly indicate the public domain status of a work, users would loose unrestricted access to government publications, created or compiled at taxpayer expense, and other non-copyrighted works because of the technological protections used to protect copyrighted works. U.S. government information would no longer remain in the public domain, free of copyright or copyright-like restrictions.

C. that rights of use for nonprofit education apply in face-to-face teaching and in transmittal or broadcast to remote locations where educational institutions of the future must increasingly reach their students.

CURRENT ENVIRONMENT

Section 110 authorizes the performance and display of copyrighted works in the course of face-to-face teaching activities of a nonprofit educational institution. Section 110(2)(c)(ii) permits remote transmission to individuals with disabilities or special circumstances.

WHITE PAPER AND LEGISLATIVE PROPOSALS

The report does not specifically mention the need to provide transmission or broadcast to remote locations for teaching purposes.

POTENTIAL IMPACT

The ability of the copyright owner to control the transmission of copyrighted works will likely eliminate or significantly limit the ability of educational institutions to transmit copyrighted resources in support of distance education without prior, authorization from the copyright owner. Teachers, faculty, and libraries would have to secure permission and pay a fee to transmit copyrighted works to students in physically remote sites. In effect, materials used in distance learning courses would be restricted to public domain materials.

Although the potential impacts outlined embrace a worst case scenario, it is realistic to conclude that a serious reduction of the public's fair use rights in the emerging electronic environment may be the result of this legislative

reform. Indeed, if the environment described in the White Paper become the norm, network users may loose many of their rights currently available for print materials. The new norms the White Paper envisions may well result in complete control of copyrighted works by the owners of those works.