I come to these questions more as a technologist and educator than
as a lawyer or librarian. In fact, it's been almost exactly 25 years
since I decided not to go to law school! But I suspect I'm not the
only one who finds the legal issues somewhat arcane and
confusing.
I received email last week from a solicitor in England. He wrote:
In Europe we are horrified by the widespread fair use copying -- legalized theft -- practiced by U.S. libraries.
He was referring, I think, to copying such as interlibrary loan done under Section 108 of the copyright act of 1976 and the "rule of 5" CONTU guidelines, confusing such copying with copying justified under fair use. That's an issue that librarians thought safely put to rest two decades ago.
His comment points to the fact that we're not just dealing with issues of "fair use", but rather with a confusing copyright law that even lawyers don't understand. One in which discussions of fair use tend --appropriately--to be blurred with other copyright provisions. The issue for us is not just interpreting fair use, but is often interpreting the OTHER limits on rights of authors, with "fair use" just providing some of the grey areas around the edges
My English colleague's comment also points to the wide
disagreement over even widely agreed guidelines. We seem to be in an
era where we can expect lots of turmoil over copyright
principles.
Librarians find themselves at the nexus of the debate.
Mike Holcomb presented a very balanced "challenges to rights holders". Libraries have traditionally been on the other end of the spectrum -- we see ourselves primarily representing the consumers of information rather than the owners of intellectual property. We tend to look for approaches that maximize the abilities of our patrons to use our collections, while not subjecting our institutions to substantial liabilities.
We talk about a "delicate balance": protecting intellectual
property rights while also meeting the constitutionally guaranteed
"fair use" information needs of educators and students. We seem to
like that "delicateness" or "fragility" imagery -- I think because
we're running scared. It's delicate because we don't really
understand it, and are afraid we'll lose rights we depend
on.
We're operating in a rather confusing and uncertain world -- a U.S. copyright regime that does not offer clear answers to most of the problems plaguing educators, where the case law relevant to libraries and educational institutions is scanty at best, and where we haven't been able to hammer out an extra-legal consensus.
Many of us in the library community saw the CONFU process as attempting to make new law rather than clarifying existing law. As such, some of us were nervous because guidelines AREN'T the same as law or precedent -- we didn't see how guidelines could create a safe harbor for us, for instance, particularly if guidelines were clearly in conflict with the law. Others of us felt that this new law gave away too much -- that it tended to shift the balance away from the needs of our patrons and towards the interests of the publishing industry. My sense is that those are the primary reasons why the library community has generally voted not to endorse any of the CONFU draft guidelines. ALA, for example, voted NO on all of multimedia, distance learning, and digital images.
For librarians, the first and most obvious challenge posed by the
collapse of CONFU is uncertainty.
One likely effect of uncertainty is going to be greater heterogeneity in the ways that different institutions deal with copyright issues. Take electronic reserves, for example. Penny Hazelton will talk about ereserves in much greater depth in our next session. What I observe is that there are really radical differences in approach between different institutions interested in providing this service.
At one extreme we have institutions that have, after careful consideration, decided not to do it at all.
At the other extreme we have institutions that are pushing fair use arguments as far as they can go in justifying extensive digitization of copyrighted material and delivery to students via network.
Another model is to focus e-reserves and other digital library initiatives on materials owned by the institution -- to start thinking like a rightsholder.
Somewhere in the middle are libraries basing their policies on the March 1996 draft CONFU ereserve guidelines.
My own instititution is currently taking an intermediate approach based very loosely on the CONFU ereserve guidelines. We're developing an electronic reserve service that focuses primarily on making available materials such as faculty-authored lecture notes where there are no copyright issues.
Our approach is to deal with the workflow and organizational
aspects of ereserves while we wait for the dust to settle on the
copyright issues.
In the short run, I ask myself 3 very different questions:
I'd like to broaden our perspective a bit. We've been talking mostly about fair use in the wake of CONFU, which is one of the major environmental trends affecting libraries in the short run. There are a couple of other trends to remember as well, including efforts at international harmonization of copyright law. Harmonization is particularly problematic to U.S. users of intellectual materials, since in general the U.S. limits the rights of copyright holders more than most countries. Recall that the very notion of "fair use" is a peculiar and parochial U.S. legal concept.
The big thing going on here -- underlying everything -- is the rapid growth of the digital world, with corresponding rapid change in both the technology and economics of publishing. Everybody's jockying for position in a world they can't accurately predict.
In other words, the central challenge for libraries is NOT just
developing guidelines. On the one hand it's coping with existing
conflicts over copyright that have been brought into the fore by the
digital revolution and on the other, developing new services and
predicting changes brought on by the digital world.
There are lots of trends of interest to academic librarians that have copyright implications. Here are a few:
Let's look at a specific example: Interlibrary Loan -- ILL -- in the context of the new technologies.
ILL is a strange beast. Based on the first sale doctrine we allow one library to lend another its physical copy of a work. We also -- based originally on fair use arguments but now on Section 108 of the US copyright act of 1976 -- allow limited copying of articles for delivery to other institutions. Publishers are willing to tolerate it largely because it's awkward, and so it doesn't happen very much. But now along comes the electronic journal and easy delivery of documents via Internet. My library doesn't subscribe to some particular commercial ejournal -- but I'd like to get a copy of an article from a library that does. It should be easy -- your library could just email or ftp it to me, or authorize me to access the web based version. Just like getting a copy of an article from the print version of that same journal, right?
In fact, it's too easy. From the publisher's perspective we
librarians have all sorts of new opportunities to unfairly use their
intellectual propoerty. What we're seeing is publishers who restrict
via licensing the copying that their subscribers can do. In some
cases it's a blanket "no copying even if it IS fair use". In other
cases a library might manage to negotiate a deal where they can copy
and deliver a journal article that appears in both the print and
electronic versions, but not those for which only an electronic
edition exists.
We can draw a variety of conclusions from this case. For instance, how about:
Consider a hypothetical situation:
Your religious studies subject specialist publishes a web page containing a quotation from L Ron Hubbard, and the Church of Scientology threatens suit against both you and your ISP for copyright infringement. What to do? (any similarity of this hypothetical to real legal cases is completely fortuitous)
Since an ISP is under current law responsible -- once they've been
notified -- for illegal copyright infringement by individuals using
their services, they're likely to shut you down without much thought.
"what's legal" requires a lengthy court case to determine. "what's
fair" may say "leave the page up" but "what's least likely to get my
institution sued" says "take it down." But that puts a pretty
chilling limit on freedom of speech!
This is an issue that's being actively debated in Washington. ISPs are lobbying intensively to protect themselves from liability, and legislation is currently on the table to change the rules, either to
Those two approaches have quite different fair use implications!
The interesting thing, though, is that the loud voices in the debate are from the publishing industry on one side, and the ISP industry on the other. In a recent Senate Judiciary hearing -- Sep 4 -- only a single representative from academia, Robert Oakley of Georgetown University, testified. The issues aren't even touched on at the Stanford fair use web site.
There does seem to be a bit of library lobbying for one of the
bills in this area, Senator Ashcroft's "Digital Copyright
Clarification and Technology Act of 1997", but in general the sense I
have is that the education/library community is a small voice between
2 sets of commercial giants.
What can we conclude?
By the way, I mentioned the Ashcroft S. 1146. From a librarian's perspective that's an excellent bill. It attempts to clarify a number of sticky areas in interpreting fair use. in the context of the Internet. Most importantly, it asserts that the concept of "fair use" is just as relevant in creating a balance between users and rightsholders in a digital world as it is in traditional print.
It's worth looking at closely in part because it distills -- and offers legislative solutions for -- many of the challenges we as librarians are seeing.
It's only one of a number of bills on copyright working their way
through the system. Another, HR 604 and S 505, the "Copyright Term
Extension Act of 1997", extends the term of copyright by 20 years
before something falls into the public domain.
So what are the bottom line bits of advice for libraries coping with the challenge?
That's it. Let's move on to audience questions and comments.