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)

The Digital Millennium Copyright Act of 1998 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?

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, , 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 Buy the Book! Complete Copyright: An Everyday Guide for Librarians