TO: NHA Members and Friends
FR: John Hammer
RE: Update on Copyright Legislation
Copyright law and the regulations developed to carry out those laws has become increasingly important in recent years to scholars, librarians, and others concerned with access to information. The digital technologies that have made possible the Internet and lightning speed distribution of information have also significantly changed how copies of information can be created and distributed. At the center of many disagreements about how copyright law can be altered to accommodate the realities of digital information and processing is the concept of fair use. Fair use was somewhat belatedly codified in the 1976 in the general revision of copyright law that, after seven years of study and negotiation emerged from Congress that year. Section 107 of the copyright statute (Title 17 of the U.S. Code) "Limitations on exclusive rights: Fair use" reads as follows:
"Notwithstanding the provisions of sections 106 and 106A [i.e., Exclusive rights in copyrighted works, and rights of certain authors to attribution and integrity], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
In a nutshell, the challenge to maintaining fair use in the electronic environment is that access to a work makes possible instant copying and transmitting to almost limitless numbers of readers.
Last October, after more than three years of battling, Congress passed two copyright bills that are of central importance to scholars, scholarly societies, libraries and others in communities that the National Humanities Alliance (NHA) serves. The Digital Millennium Copyright Act (DMCA) broadens protection for intellectual property to digital materials and the Internet. The Copyright Term Extension Act extends the protection from 50 years after the death of the author to 70 years after death; and extends work of "corporate creators" from 75 years to 95 years.
When the legislative process got underway in the 104th Congress, it became apparent at an early date that for our community, the key goal would be to ensure that fair use and related educational and library provisions in the copyright statute remained robust and effective in the electronic environment as well as in print. At the same time, the importance of owners' rights was understood to be in the interest of all. Hence, from the beginning, the goal was to work for legislation that balanced the rights of owners and users. The array of major media and entertainment forces with many allies in the administration and elsewhere in government pushing for much more comprehensive owner control and, in effect, drastically weakening fair use was daunting for scholars, librarians, and others.
In the autumn of 1995, the NHA joined with a number of other organizations to establish the Digital Future Coalition (DFC) with the goal of copyright legislation updated for the electronic environment that maintained the balance of owner and user rights enjoyed under the 1976 statute. Throughout the subsequent process, NHA and a number of its member organizations united under the DFC.
After December 1996, pressure for DMCA-like legislation increased because the U.S. was a signatory to the new World Intellectual Property Organization (WIPO) treaties negotiated in Geneva. The WIPO treaties required the U.S. to update its copyright laws to account for the requirements of the digital environment.
While the DMCA legislation states that it makes no change in the Fair Use Doctrine, in fact the law leaves a number of questions hanging with various reports on impact and future rulemaking for action down the road. Success for the humanities community may depend in large measure on librarians, scholars and others collecting and organizing evidence of the law's adverse or potentially adverse effects. There is also a provision for the Registrar of Copyright to report on whether additional legislation is necessary to accommodate distance education.
As noted above, it was through the DFC that the NHA and others worked for legislation that would maintain the traditional balance in copyright law between protecting information and affording access to it though: helping Congress to craft entirely new legislation with the balance in mind; and updating information users existing rights and privileges to take changed technologies and practices into account. Of special concern are the following provisions:
Reverses a Supreme Court decision on patent protection for certain kinds of boat hull design. Note: The House added a number relatively non-germane provisions that reversed court decision and so forth. This was the only one to survive conference.
This bill extends by 20 years the length of protection afforded to works created by both individuals and corporate copyright holders.
Although many scholars and other opposed this legislation which among other things virtually stops for twenty years the flow of previously copyrighted material into the public domain, it also contains limited but important exemptions that can permit libraries, archives, and other nonprofit educational institutions to minimize the practical impact of the legislation on research and related areas. Areas of special interest include:
The constitutional basis for all U.S. intellectual property laws, including copyright reads: "The Congress shall have Power...To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries." (Article I, Section 8).
In addition to fostering a balance between owners and users, as noted above, a long-term court-backed concept of intellectual property is that protection is offered for ideas but not fact. In practice, this has meant that large databases could not gain copyright protection for facts (e.g., the phone book).
Owners of large databases (e.g., Reed Elsevier) have been seeking a way to secure federal protection outside the copyright system. Legislation was introduced in 1995, created a new kind of commercial protection -- Copyright-like except that it could easily be renewed, perhaps perpetually, and there were no exceptions for fair use or other non-commercial uses. Humanities community members were concerned about how such legislation as potentially curbing access. On the other hand, scholars and scholarly societies also are owners of databases and on that score have interests in securing protection.
The database protection issue was raised at the December 1996 WIPO Conference in Geneva. The delegates specifically declined to include consideration of database in connection with the treaties agreed upon at the conference (see DMCA report above). A major reason that database was excluded was a feeling that the issue had not been thoroughly studied either within the countries participating in WIPO or at the conference itself.
In the final rounds of what became the DMCA, legislation that had passed the House but had not been considered by the Senate, was attached to the DMCA in the House and passed. That provision was removed in conference after intense lobbying by DFC member organizations and others. The board of the National Humanities Alliance took a position against including the database legislation under the DMCA but also pledged to members of Congress that the NHA favored a careful review of the database issue, including hearings, and that NHA may be willing to support legislation that recognizes fair use.
Model legislation has been developed by colleagues in the DFC. In coming weeks, the NHA Executive Committee will review the proposed legislation and act upon a recommendation of NHA's Committee on Libraries and Intellectual Property.
Return to The Question of Copyright - Part 2