Copyright in the Digital Age

Copyright in the Digital Age October 14, 2004 FEDLINK Membership Meeting Carrie Russell, Copyright Specialist ALA Office for Information Technology Policy Brief Review of Copyright • Purpose: to benefit the public by advancing the progress of science and the useful arts • Not a natural right • Limited, statutory monopoly • Exclusive rights • Exemptions for users • Public domain Exclusive Rights • • • • • Right to reproduce copies Right to distribute copies Right to display a copy publicly Right to perform a copy publicly Right to create a derivative work based on the original Fair Use • Copyright can be infringed because strict application of the law is unfair and stifles creativity. • Fair Use is based on years of judicial decisions (case law). • Fair Use is codified in Section 107 of the copyright law. • Fair Use is a defense in an infringement case, but it is also a user right. Fair Use • You don’t have to pay a fee or ask permission if your use is a fair use. • Fair use cannot be quantified or “set in stone.” • “Fair Use Guidelines” are not part of Section 107. • Fair use is supposed to be “technologically neutral.” • Fair use is an unauthorized, but lawful, use of a copyright. (The DMCA complicates this fundamental tenet). First Sale (Section 109) • Limitation on the right to distribute a work. • Once one lawfully acquires a copy of a work, one can distribute that copy. – Loan – Rental – Sale • “Digital first sale” is not explicitly noted in Section 109. Reproduction right is also implicated. A Word about Licensing… • Licenses are governed by state contract law, not federal copyright law. • “Copyright language” is often included in a contract. • It’s unclear whether federal law “trumps” state law. • Most electronic resources are licensed, and not owned. Copyright Protection Broadened • “Automatic” copyright • Copyright term extended 11 times in last 40 years • Digital Millennium Copyright Act – online service provider liability (institutions as copyright enforcers) – copyright management systems eliminate fair use in digital world – criminal and civil liability • Guilty until proven innocent Other Control Mechanisms • Rise of licensing and push for automatic, non-negotiated contracts • Digital rights management enforce license terms and restrict use of copyrighted works • Attempts to legalize private hacking • Cease and desist letters, threats of litigation • Attempts to pass database legislation • Attempts to mandate technology (broadcast flag, INDUCE Act) • Attempts to deal with copyright and digital works • Lots of litigation, lots of proposed legislation to “fix” the DMCA • Some believe there should new, separate legislation for the protection of digital materials • Messy; we know most digital works are licensed • Should federal legislation help protect fundamental user rights to info in a licensed world? The Digital Millennium Copyright Act of 1998 Online Service Provider Liability • Protects OSPs from third party liability • OSPs must comply with copyright holder demands to get the exemption • Like “cease and desist,” now in statutory language • Used effectively to direct the copyright policy of higher educational institutions Copyright Protection and Management Systems • Anti-circumvention of technological measures • Cannot break an access control measure without authorization • Cannot use an circumvention tool to gain access • Cannot create a circumvention tool to gain access or copy • Civil and criminal penalties (educational institutions, libraries exempt from criminal penalties, potential remission of statutory damages) • Can one exercise fair use in this environment? Web Sites, E-Mail, Blogs • Must assume copyright-protected • Provide copyright notice information where appropriate • “Open” nature of Web, “implied license” status of posted materials • Creation of compilations • More peer-created works Peer-to-peer Controversy • Legitimate concerns, over-zealous response • Technology not inherently evil • Threat to innovation • Unintended consequences • “Betamax” court ruling under fire • Looks like a consumer issue, but has broader public policy implications What About You? • Creating bibliographies, path finders • Building databases • Marketing your library and using copyrighted works? • Work-for-hire concerns • Your idea here…. Contact Me Carrie Russell, Copyright Specialist crussell@alawash.org www.librarycopyright.net 202.628.8421 Buy the Book! Complete Copyright: An Everyday Guide for Librarians