by

Duane E. Webster

Executive Director Association of Research Libraries

1. Introduction and overview

Throughout the world, interest in copyright and intellectual property issues has mushroomed. 1n the United States this is expressed with increased litigation, copyright legislation reform, and campus based discussions on new models of ownership and access to intellectual property. I am pleased to have this opportunity to comment on copyright discussions in the United States. Copyright issues are complex and in the rapidly changing global environment, it is critical that librarians throughout the world give careful, thoughtful, and extensive consideration to national developments that may have broad impact on creative efforts everywhere.

The increased attention to copyright is a response to both the opportunities provided by information technology for broad and innovative access as well as the economic pressures and opportunities that exist in the electronic information environment. Relying on legal, technology, or business experts for solutions to the problems created by this new environment, however, is a mistake. Librarians should take leadership on this set of issues because of out role in society and the values we bring to bear on the institutions that shape society. 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. Furthermore, libraries comprise an important market and serve as essential points of access for a wide range of traditional and electronic information products. We are in the best position to see what works and what does not work for society as a whole.

There are fundamental public policy issues that are an integral part of the print environment as well as the electronic information revolution. Copyright law is intended to encourage learning, free speech, and the advancement of knowledge. Its purpose is to serve social interests and the public welfare. The central concept is built around the use of the work, with owners being granted special rights of use for a limited time. A core 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, scientists, scholars, and other idea creators?

To this end, ARL has developed this statement of principles (see Appendix 1 for full text and annotations) that affirm the preservation and continued balance of intellectual property rights in an electronic environment. These rights ate essential to the free flow of information and the development of an information infrastructure that best serves the public interest.

Principle 1: Copyright exists for the public good.

Principle 2: Fair use, the library, and other relevant provisions of the Copyright Act of 1976 must be preserved in the development of the emerging information infrastructure.

Principle 3: As trustees of the rapidly growing record of human knowledge, libraries and archives must have full use of technology in order to preserve our heritage of scholarship and research.

Principle 4: Licensing agreements should not be allowed to abrogate the fair use and library provisions authorized in the copyright statute.

Principle 5. Librarians and educators have an obligation to educate information users about their rights and responsibilities under intellectual property law.

Principle 6: Copyright should not be applied to U S. government information

PrincipIe 7: The information infrastructure must permit authors to be compensated for the success of their creative works, and copyright owners must have an opportunity for a fair return on their investment.

The Association of Research Libraries affirms the proceeding intellectual property principles as they apply to librarians, teachers, researchers, and other information mediators and consumers. We join in and support the determination to develop a policy framework for the emerging information infrastructure that strengthens the Constitutional purpose of copyright law to advance science and useful arts.

The central thesis inherent in the development of these principles is a simple one: that open, equitable access to information is a right that needs particular attention as we move into this electronic environment in order to avoid a stratification of information users based on institutional affiliation or the ability to pay. Such a stratification would severely damage the fabric of knowledge creation and diffusion in our society.

Given the environment under which these discussions are taking place, it is not surprising to learn that the U.S. judiciary is under the same pressures to make sense of conflicting opinions from various interest groups. Like the Congress, they too have the power to delineate certain rights of use for copyrighted materials. I'd like to turn now to a summary of important decisions that have the potential to steer the future of rights to intellectual

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 whet the creator or publisher might gain from commercial sale of the work. This doctrine of fair use as it applies to print and electronic information is currently being intensely debated in the U.S.

In the U.S. courts, there is an active testing of current practices in regard to copyright and the usage of print-based publications. 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 case¹ in 1991, the Texaco case² in 1994, and the Michigan Document Services case³ 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, a Federal District Court in New York ruled that Kinko's Graphics Corporation exceeded its rights of fair use when it photocopied "anthologies" or "course packs" comprising book chapters, and sold them to students for their required reading at nearby colleges and universities for use at local universities. The impact of the judgment is serious for many faculty 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 royalty fee to the publishers. It should be noted that these copies were made by a research scientist at Texaco for his own research needs. 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. 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. This agreement means that there will not be an appeal to the U.S. Supreme court which many believe would have served to clarified and supported the public interests at stake in this case.

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, based in Cincinnati, Ohio, 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 v. Michigan Document Services, Inc.) This ruling, as originally made, 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.

At a minimum, the conflict between the MDS case and Kinko's exposes the turmoil and uncertainty that lies within fair use, and it serves to remind the academic community that we need to respond aggressively to developments in copyright law. In fact, in this latest case the plaintiff-publishers have been successful in securing a rehearing from the Court of Appeals, and this will likely lead to further developments in this case.

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 anything 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 required to assume an assertive, educational role in their communities about applications of fair use and personal use.

3. Legislative Developments

In the United States, there is growing interest in updating the Copyright Law of 1976 to meet the needs of the emerging electronic publishing environment.

The Clinton administration, shortly after taking office, convened a National Information Infrastructure Task Force chaired by the Secretary of Commerce RonaId 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 Property 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 US. 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 publishers 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 commercial 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.

Two bills pending before the US Congress, H.R. 2441 and S. 1284, The National Information Infrastructure Copyright Protection Act of 1995 are the primary means the Clinton Administration and members of Congress seek to implement a digital update. Both bills reflect the recommendations in the White Paper and have garnered considerable support from important parts of the commercial sector, especially the content creator and publisher

communities. The library community, on the other hand, has advocated the position that any change in the law should build on the balance between owners and users that is so well expressed in the current law aimed at the print environment. Specifically, the library community advocates that fair use concepts be carried forward into the electronic environment; that provisions should be included to relieve library and educational institutions from liability under circumstances where users behavior may infringe on copyright; that from a computer management point of view, ephemeral reproductions not be considered copies; to permit libraries to fully engage in digital preservation activities, and to ensure that distance education activities continue.

Debate on the merits of this copyright legislation as well as a series of other legislation related to use of intellectual property in an electronic environment has led to the mobilization of a number of interest groups in the US that are attempting to contribute perspectives and shape the outcome of the exchange. One of the most important is the Digital Future Coalition. Formed in the fall of 95, the DFC works towards a thorough, broad and balanced Congressional debate of U.S. copyright law and policy. DFC's 27 members represent virtually every segment of the "information economy" and include creators, consumers and distributors of information. (see Appendix 2 for full list of DFC members) DFC believes that any changes in the nation's intellectual property laws must be carefully crafted not merely to protect copyright proprietors and existing business models, but to foster broad public access to information, innovation in industry and education, and the privacy rights of all Americans. ⁴

Although the pending legislation has been characterized as mere "fine tuning" of the Copyright Act, these bills suffer from serious defects which threaten to imbalance U.S. copyright policy and law. While some consider such access and use "leakage" from a private information "pipeline," the Copyright Act now recognizes them to be a vital and natural part of the flow of ideas and information in a democracy. DFC is working actively with members of Congress and their staffs to address the pending legislation's text and several critical omissions from these bills. DFC urges Congress to thoroughly scrutinize S. 1284 and H.R. 2441 and to defer action on them until their full impact on American competitiveness, education and scholarship is thoroughly understood.⁵

Another group that is working to influence the future of copyright in the US is the Shared Legal Capability. This group consists of representatives from five U.S. library associations who cooperate strategically and financially to gain the greatest impact for their collaborative voice.⁶ The SLC submitted statements to both the U.S. House and the Senate regarding their proposed changes, drafted alternative legislative proposals for sections 107 and 108 and endorsed proposals by the DPC regarding first sale and ephemeral copying.

SLC also participates in the negotiations with online service providers and content owners on service liability issues and seeks to establish common ground among the many players in this complex copyright arena.

In addition to helping establish the Shared Legal Capability, ARL has also issued a briefing package reviewing the legislation and providing information on those positions taken and advocated by the library community. Copyright and the NEI: Resources for the Library and Education Community⁷ was developed to assist librarians and educators in educating their colleagues, campus administrators, legislators, and other on the NII Copyright Bills. Our goal is to inform ongoing discussion and urge participation in the debate. The packet outlines potential consequences of legislation that could redefine the way librarians and educators carry out their work. With awareness of the issues, understanding of the implications, and commitment to action, the library and education communities will enhance their opportunity to influence the outcomes to advance education, scholarship, and free inquiry in the electronic environment.

Yet another concern in the US is a strategy by Clinton administration representatives to skirt these current legislative debates and attempt to set domestic policy of restrictive copyright practices by securing international agreement in the upcoming World Intellectual Property Organization (WIPO) discussions. The WIPO is the branch of the United Nations which administers the "Berne Convention for the Protection of Literary and Artistic Works," the international treaty governing copyright issues. The WIPO governing body is finalizing a schedule to amend the Berne Convention by way of a new protocol. These changes will be drafted in September 1996 and voted upon by all WIPO member nations at a formal conference in Geneva in December 1996.

The U.S. delegation to the WIPO, on behalf of the Clinton Administration, has strongly urged in past WIPO meetings that the proposed new protocol must include a package of proposals to update copyright law for the digital age. These proposals are essentially identical to those now before Congress in H.R. 2441 and S. 1284. Since serious concerns have been raised about this pending legislation, no domestic consensus on how best to modify the US or international law can be said to exist at the present. If the current proposals of the US delegation is unmodified, representatives of the Clinton Administration will aggressively urge the adoption internationally of proposals which have not been fully considered by Congress and around which no domestic policy consensus has been formed. Such action would seriously undermine the Constitutionally granted copyright authority of Congress and deny them the maximum degree of control in the formulation of domestic copyright policy.⁸

Unfortunately, given the current legislative landscape in the US, it is realistic to conclude that a serious reduction of the public's fair use rights may be the result of proposed reform. As a result of this concern, five library associations' in the United States developed "Intellectual Property and the NII-Serving the Public Interest", a fait use statement which articulates how the rights available in the current print environment extend into the electronic environment (see Appendix 3 for a complete version of the statements along with annotations about the current environment and potential impacts).

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 commercially 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 publications in order to preserve and make them more readily available over networks.

Efforts are also underway 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 information 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:

• fostering a more competitive market for scholarly publishing by providing realistic alternatives to prevailing commercial options;
• developing policies for intellectual property management emphasizing broad and easy distribution and reuse of material;
  
• encouraging innovative applications of available information technology to enrich and expand available means for distributing research and scholarship;
  
• assuring that new channels of scholarly communication sustain quality requirements and contribute to the promotion and tenure processes.
  

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 a 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 fog the benefit of society as a whole, not as an exploitable economic commodity for the monetary gain of a few.

Appendices

1. INTELLECTUAL PROPERTY: AN ASSOCIATION OF RESEARCH LIBRARIES STATEMENT OF PRINCIPLES
2. THE DIGITAL FUTURE COALITION
3. INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE -- SERVING THE PUBLIC INTEREST?

Revised 7/15/96

D. Webster